Ramp v. Metropolitan St. Ry. Co.

• Decision Date: 16 November 1908
• Citation: 114 S.W. 59,133 Mo. App. 700
• Parties: RAMP v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

114 S.W. 59

133 Mo. App. 700

RAMP v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

Rehearing Denied December 7, 1908.

1. NEGLIGENCE (§ 117)—CONTRIBUTORY NEGLIGENCE —NATURE OF PLEA.

Contributory negligence is a plea in the nature of a plea of confession and avoidance,

implying that a cause of action would exist in plaintiff's favor, but for the fact that his negligence co-operated with defendant's to produce the injury, and is an affirmative defense, which is waived, unless defendant pleads and proves it, except where plaintiff's evidence shows contributory negligence.

2. NEGLIGENCE (§ 117)—CONTRIBUTORY NEGLIGENCE —SUFFICIENCY OF PLEA.

An averment that any injury to plaintiff was caused by her own fault and negligence insufficiently shows contributory negligence, since it makes her negligence the sole cause of the injury.

3. NEGLIGENCE (§ 119)—DEFENSES—PLEADING.

One sued for negligent personal injury may show that plaintiff was the sole cause thereof under a general traverse, since it is in no sense in the nature of a plea of confession and avoidance, and the defense being unnecessarily pleaded, may be regarded as surplusage.

4. APPEAL AND ERROR (§ 882)—ERROR INDUCED BY COMPLAINING PARTY.

Defendant cannot complain of an instruction placing the burden on it to show contributory negligence, where the court at defendant's instance erroneously submitted the issue of contributory negligence; it not having been pleaded.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Personal injury action by Julia E. Ramp against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and F. G. Johnson, for appellant. Joseph A. Guthrie and James A. Kemper, for respondent.

JOHNSON, J.

Plaintiff, in attempting to alight from a cable street car on which she was a passenger, fell to the pavement, and was injured. She brought suit against defendant, the carrier, for the damages sustained, on the ground that her fall was caused by its negligence. She alleges in her petition: "That when said train of cars arrived at Central street, in said city, it came to a stop at or near the point where said Ninth street intersects the east side of Central street, which point was and is the place where said east-bound cars over said line were customarily and usually stopped for the purpose of permitting passengers to alight therefrom or embark thereon; that after said train of cars was stopped at said point as aforesaid, and while the same was yet standing still, this plaintiff undertook to disembark from said car by stepping from the floor thereof down to and upon the step at the front end of the south side of said coach, and from said step down to and upon the ground; that after plaintiff had gotten upon said step, which was about 15 inches above the ground, and before she had alighted therefrom, and before she had been given a reasonable time to alight therefrom, and while she was in the exercise of ordinary care, prudence, and diligence, said defendant, through its agents and servants, who knew, or by the exercise of ordinary care could have known, that the plaintiff was standing upon said step preparing to alight from said car, in charge of said train of cars, and without warning to plaintiff and without allowing her reasonable time to alight from said car, as aforesaid, carelessly and negligently started said train of cars, and that by reason thereof this plaintiff was thrown from and off of said step down to and upon the ground with great force and violence, and that by reason thereof plaintiff sustained serious, painful, and permanent injuries as hereinafter set forth." The answer of defendant is as follows: "Now comes defendant, and for answer to the amended petition of plaintiff filed herein denies each and every allegation in said petition contained. And, for further answer, defendant says that, if plaintiff received any injuries at the time mentioned in said petition, the same were caused by plaintiff's own fault and negligence." The evidence of plaintiff tends to sustain the allegations of the petition. It shows that the train stopped on her signal at a regular stopping place, and that she proceeded to alight, and, while in the act of stepping to the street, was thrown by...