Schmitt v. St. Louis Transit Co.

• Decision Date: 28 November 1905
• Citation: 90 S.W. 421,115 Mo. App. 445
• Parties: SCHMITT v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

90 S.W. 421

115 Mo. App. 445

SCHMITT v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

November 28, 1905.

1. CARRIERS—INJURY TO PASSENGER—NEGLIGENCE —EVIDENCE.

Evidence, in an action against a street car company for injuries received by a passenger while boarding a car, in consequence of the premature starting of the car, held sufficient to justify a finding that the company was guilty of actionable negligence.

2. SAME—CONTRIBUTORY NEGLIGENCE.

For one to board a moving street car is not necessarily such negligence as will bar a recovery for an injury caused by the acceleration of the speed of the car while he was in the act of boarding it, but whether there is negligence depends on the circumstances.

3. APPEAL—INSTRUCTIONS—HARMLESS ERROR.

The error, if any, in an instruction in an action against a street car company for injuries received by a passenger in consequence of the starting of the car, that plaintiff could not recover if he attempted to board the car while moving, was not prejudicial to defendant.

4. CARRIERS—INJURIES TO PASSENGERS—EVIDENCE —VERDICT.

In an action against a street car company for injuries received by a passenger while attempting to board a car, plaintiff testified that he was thrown 10 feet by the movement of the car on it starting while he was boarding it. The conductor testified that plaintiff was dragged along some distance and thrown to the ground. Other witnesses showed that he was not thrown 10 feet. Held, that the verdict for plaintiff would not be reversed because his testimony was contradicted by physical facts based on the improbability that a car could start from a motionless state with such violence as to throw a person in the act of stepping on it 10 feet away.

5. SAME—INSTRUCTIONS—MANNER OF ARRIVING AT VERDICT.

Where, in an action for personal injuries, the testimony does not show beyond dispute any fact rendering it impossible, according to the laws of nature, for the accident to have occurred from defendant's negligence, unless the injured person was also negligent, an instruction requiring the jury to determine the issues and to weigh the testimony of the witnesses according to the probability thereof is sufficient, without a charge that the finding must be in accordance with the physical facts.

Appeal from St. Louis Circuit Court; Matt. G. Reynolds, Judge.

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

Boyle, Priest & Lehmann and G. B. Arnold, for appellant. W. H. Ludwig and A. R. Taylor, for respondent.

Statement.

GOODE, J.

The defendant prayed the court to instruct the jury as follows: "(8) The court instructs the jury that in weighing the evidence and determining the facts in this case you should not only weigh and consider the oral testimony given in evidence by the several witnesses who have testified before you, but you should also take into consideration the physical facts which appear in evidence, if any; and if you believe and find that the oral testimony heard by you conflicts and is inconsistent with the physical facts in evidence, if any, then your finding should be in accordance with such physical facts. * * * (10) The jury are instructed that, under the pleadings and all the evidence in this case, your verdict must be for the defendant." Which said instructions, and each of them, the court refused to give, to which ruling defendant excepted.

The court gave the following instructions for the plaintiff: "(1) If the jury find from the evidence in this case that the defendant was, on the 3d day of June, 1901, operating the railway and car mentioned in the evidence as a carrier of passengers for hire, and if the jury find from the evidence that on said day the defendant's servants in charge of the east-bound car on Delmar boulevard stopped said car at the intersection of Delmar boulevard and Bayard avenue to receive the plaintiff as a passenger thereon at the signal of the plaintiff of his intention to become a passenger on said car, and if the jury find from the evidence that, whilst said car was so stopped to receive the plaintiff as such passenger, the plaintiff was proceeding to get upon said car as a passenger, and that whilst he was in the act of doing so, and that whilst he was stepping upon said car to become a passenger, and before he had a reasonable time or opportunity to do so, defendant's servants in charge of said car negligently caused or suffered said car to be started, and that thereby the plaintiff was caused to be thrown and to fall from said car, and to sustain injuries to his person thereby, and if the jury find from the evidence that the plaintiff was exercising ordinary care at the time of his injuries, then he is entitled to recover. (2) If the jury find for the plaintiff, they should assess his damages at such a sum as they may believe from the evidence will be a fair compensation to him: First, for any pain of body or mind which the jury may believe from the evidence he has suffered or will suffer by reason of his injuries, and directly caused thereby; second, for any loss of the earnings of his labor and avocation which the jury believe from the evidence he has sustained or will hereafter sustain by reason of his injuries, and directly caused thereby. (3) The court instructs the jury that if they find from the evidence that the defendant, on the 3d day of June, 1901, was operating the car mentioned in the evidence for the purpose of carrying passengers for hire by street railway, and if the jury find from the evidence in this case that defendant's motorman, at a signal given by the plaintiff, stopped said car to allow plaintiff to get on said car as a passenger, then it was the duty of the defendant, by its servants in charge of said car, to hold said car still until the plaintiff had a reasonable time and opportunity to get upon said car, and in a position of reasonable security on said car." To the giving of said instructions defendant excepted.

The court gave the following instructions for the defendant: "(1) In instructing you as to the law of this case, I will admonish you that you have an important duty to perform in carefully weighing and considering the evidence and applying the law as it shall be given to you in these instructions. You will fail in your duty if you should not look to all the proof and consider it fully, fairly, and impartially, and with but one purpose, namely, to arrive at the truth, and to do equal and impartial justice, looking only to the law and the proof. You should satisfy yourselves, before returning a verdict, that you fully understand the law and the proof upon which you base your verdict, as your oath places upon you the duty of finding and returning a verdict according to the law and the evidence, and that alone. The rights of the parties under the issues made are submitted to you for your honest determination, and you should weigh and consider all the questions submitted without any feeling of prejudice or partiality one way or the other, and with an honest purpose to reach a correct conclusion under the law and the proof. No juror should assent to a verdict that he does not conscientiously believe a correct one, according to the law and the proof. You should discuss among yourselves the matters submitted dispassionately, and with minds open to reason and conviction, after the argument of counsel has been heard, without getting up unreasonable antagonism that might interfere with a just, fair, and proper consideration of the case. If any juror should happen to know any fact bearing upon this case, either directly or indirectly, he should not act upon it nor communicate it to his fellow jurors. The law requires you to discuss and rely alone for your verdict upon the sworn testimony adduced, and under the law as given you in these instructions. The jury should not consider the fact that there is an individual on one side and a corporation on the other. Their rights are equal and the same under the law, and the jury should for the time being ignore any consideration as...