Reagan v. St. Louis Transit Co.

• Decision Date: 24 February 1904
• Citation: 180 Mo. 117,79 S.W. 435
• Parties: REAGAN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

79 S.W. 435

180 Mo. 117

REAGAN v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

February 24, 1904.

CARRIERS — STREET RAILWAYS — ALIGHTING PASSENGERS — NEGLIGENCE — BURDEN OF PROOF—INSTRUCTIONS—TRIAL — LIMITATION OF ARGUMENT—RULES OF COURT—DISCRETION OF TRIAL JUDGE.

1. Where a cause comes to the Supreme Court not on the short form allowed by statute, but on full record, showing the final judgment, the order allowing the appeal, the record entry of the filing of the bill of exceptions, and the full bill itself, an abstract accompanying the record, and containing a recital of these facts, is sufficient.

2. In an action for injuries to a passenger alighting from a street car, a charge that the burden of proof was on plaintiff to show that the car had stopped or slowed down, and that, while plaintiff was alighting, and before she had a reasonable time to alight, defendant's servants caused the car to move forward with increased motion, and thereby plaintiff was thrown on the street and injured, whereas, if defendant's servants had exercised a high degree of care, they would have prevented such injury, was not open to the objection of throwing on plaintiff the burden of proving that the sudden starting of the car could have been prevented by the exercise of the high degree of care incumbent on defendant.

3. Where a street car stops or slows down to such a degree that it is reasonably prudent for a passenger to attempt to alight, and she sc attempts, but while alighting the car starts forward so as to throw her down, the street railway is liable for a resulting injury, unless it can affirmatively show that such movement of the car could not have been prevented by the exercise of that degree of care which a carrier owes to a passenger.

4. In an action for injuries to a passenger alighting from a street car, where the defense was that the car had not stopped for plaintiff to alight, but was moving at a rate of speed that rendered it dangerous for her so to do, the burden was on plaintiff to prove that the car had stopped or had slowed down to a degree rendering it safe for her to alight, and that a new impetus was given to it while she was alighting.

5. In an action for injuries to a passenger alighting from a street car, there was no necessity for instructions on the care to be exercised by defendant in preventing the sudden starting of the car, where there was no claim by defendant that the car had started from a cause beyond its control, but its defense was a denial that the car had stopped for the passenger to alight, but was moving at a speed rendering it dangerous for her to so do.

6. A rule of court providing that in jury trials plaintiff, or, where he has the affirmative of the issues, defendant, may open and close, and that the court may announce how much time will be allowed on each side for argument, and that plaintiff may apportion the time allotted to him between his opening and

closing argument, but shall not consume more than one-half thereof in closing, is a reasonable regulation, and within the power of the court to make.

7. In an action for injuries to a passenger, where the only issue presented was whether or not the car had slowed down or stopped, and, before plaintiff had time to alight, started again with a jerk, and plaintiff was the only witness in her behalf, and defendant introduced but five witnesses, the law of the case being plain and fully covered by the instructions given, a 15-minute limitation for argument was proper.

8. The limitation of argument to the jury is a matter for the judicial discretion of the trial judge, and an abuse of that discretion must be clear, to authorize reversal therefor.

Robinson, C. J., and Brace and Valliant, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by Bridget Reagan against the St. Louis Transit Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The following is the opinion of the court in Division No. 1:

VALLIANT, J.

Plaintiff was a passenger on a street car on defendant's railway in St. Louis, and received injuries to her person by falling while she was in the act of alighting. The petition alleges that, when the car reached the point of the plaintiff's destination, in obedience to her signal, for the purpose of allowing her to alight, it either stopped or slowed down so as to be moving imperceptibly (plaintiff being unable to say which), whereupon she attempted to alight, and while in the act of doing so the defendant's servants in charge of the car negligently caused or suffered it to move forward with increased motion, which caused the plaintiff to be thrown upon the street and suffer certain severe injuries. The answer was a general denial and a plea of contributory negligence, to which there was a reply. The testimony on the part of the plaintiff tended to prove the cause of action as stated in her petition, and that on the part of the defendant tended to prove the contrary, and to sustain the plea of contributory negligence. There were four witnesses examined on the part of the plaintiff, and five for the defendant. Their testimony, as reported, covers 53 pages in the bill of exceptions. The instructions given cover 4 closely written pages of manuscript. The instructions given on behalf of the plaintiff were to the effect that if, for the purpose of allowing the plaintiff to alight, the car had been stopped, or slowed down so that its motion was imperceptible, and the plaintiff thereupon was in the act of alighting, and while she was in that act, and before she had a reasonable time in which to alight, the servants of defendant in charge of the car caused or suffered it to move forward with an increased motion, and thereby the plaintiff was thrown upon the street and injured, and that if the defendant's servants had exercised a high degree of care and skill, such as careful and skillful railway operators would exercise under like circumstances, they would have prevented such motion of the car, but that they neglected to do so, the plaintiff was entitled to recover. The instructions for the defendant were to the effect that if the plaintiff suffered the injuries complained of in consequence of attempting to alight from the car while it was moving, under such circumstances as that a woman of ordinary prudence would not have so attempted, she was not entitled to recover. Then the court, of its own motion, gave this instruction, which is the only one complained of: "The burden of proving the facts set out in these instructions as necessary to be proved in order to enable plaintiff to recover is upon the plaintiff—that is, the preponderance or greater weight of the testimony must be on the side of the plaintiff—and, unless she has so proven them, she is not entitled to recover. The burden of proving any negligence in the plaintiff is upon the defendant." To the giving of which exception was taken.

The following, which was one of the rules of practice of that court, was enforced in this case:

"Rule 29. Trial—Argument of Counsel. In cases tried before a jury the plaintiff shall have the privilege of opening and closing the argument; the opening argument to be made after the evidence is in, and after the instructions, if any, have been given. Should the plaintiff decline to make the opening argument, he will be considered as thereby waiving his privilege of closing the same, and shall not be allowed to do so, but the defendant shall, nevertheless, have the privilege of making his argument. Before the argument begins, the court will announce how much time will be allowed on each side for argument, each side being allowed the same length of time. The plaintiff may apportion the time allotted to him between his opening and closing argument, as he may choose: provided he shall not consume more than one-half of his time in his closing argument. In those cases in which the court decides that the defendant has the affirmative of the issues, he shall have the opening and closing of the argument in like manner, and under the same restrictions, as above laid down for the plaintiff. The court may in its discretion change the order of argument as above described, in a particular case, where the circumstances in the opinion of the court require it, and where it is so ordered before the argument begins. The court may in its discretion allow the argument in a particular case to extend beyond the allotted time if the circumstances in the opinion of the court render it proper to do so."

The court limited the arguments to 15 minutes on each side. Counsel for plaintiff asked longer time, but the court refused the request, and the plaintiff excepted.

The verdict and judgment were for the defendant, and plaintiff appealed.

1. Respondent presents the point that the abstract of appellant does not show that there was a final judgment rendered or appeal allowed, and, further, that it does not show that there is a record of the filing of the bill of exceptions. The cause is not here, however, on the short form allowed by statute, but on full record; and that record shows the final judgment, the order allowing the appeal, and the record entry of the filing of the bill of exceptions. It also contains the full bill of exceptions. The abstract contains a recital of all these facts, and, accompanying, as it does, the full record, is sufficient.

2. Appellant assigns for error the giving of the instruction above quoted, which is to the effect that the burden was on the plaintiff to prove the facts set out in the instructions as necessary to entitle her to recover. It is contended that this instruction throws upon the plaintiff the burden to prove that the sudden starting of the car after it had stopped, and while the plaintiff was alighting, could have been prevented by the exercise of the high degree of care that was incumbent on the carrier. We do not think the instruction susceptible...