Schwanenfeldt v. Metropolitan St. Ry. Co.

• Decision Date: 24 May 1915
• Docket Number: No. 11630.,11630.
• Parties: SCHWANENFELDT v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

176 S.W. 1098

SCHWANENFELDT v. METROPOLITAN ST. RY. CO.

No. 11630.

Kansas City Court of Appeals. Missouri.

May 24, 1915.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially reported."

Action by Laura Schwanenfeldt against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John H. Lucas and Bruce Barnett, both of Kansas City, for appellant. J. H. McVay, of Kansas City, for respondent

ELLISON, P. J.

Plaintiff was a passenger on defendant's street car, and charges that she signaled for the car to stop that she might alight; that the car did stop, but, while she was in the act of going down the aisle toward the step of the car, defendant's servants started it forward with such violence and suddenness as to throw her down and inflict painful injury. She recovered judgment in the trial court.

There was evidence in plaintiff's behalf tending to show that the car stopped, and she arose from her seat to go to the exit to alight; that, as she was walking down the aisle, the car started suddenly forward and threw her to the floor of the car, inflicting injury.

Instruction No. 5 for plaintiff was a general instruction purporting to cover the whole case and directing a verdict for plaintiff; yet, though submitting ordinary care in her act of arising from her seat, it omitted two essential requisites to her right to a verdict. It is so worded as not to require that she should have been in the exercise of ordinary care while she was walking down the aisle when she fell. McMahon v. Express Co., 132 Mo. 641, 649, 34 S. W. 478; Riegel v. Loose-Wiles, 169 Mo. App. 513, 155 S. W. 59, and cases therein cited. The instruction in the husband's case for loss of services, decided by us at this term, contained this requisite.

Again, the instruction, while submitting the question whether defendant's servants knew that plaintiff was intending to alight, does not submit the question whether they knew she had arisen from her seat when the jerk was made. A jerk that would be harmless with passengers seated would be negligence if they were walking to the door for the purpose of getting off. It was necessary that the jury should find that she had left her seat in the act of going out of the car. Cramer v. Traction Co., 112 Mo. App. 350, 87 S. W. 24; Yarnell v. Railway, 113 Mo. loc. cit. 578, 21 S. W. 1, 18 L. R. A. 599; Clotworthy v. Railroad, 80 Mo. 221; Straus v. Railroad, 75...