Simms v. Dunham

• Decision Date: 20 May 1918
• Docket Number: No. 12886.,12886.
• Parties: SIMMS v. DUNHAM et al.
• Court: Missouri Court of Appeals

203 S.W. 652

SIMMS v. DUNHAM et al.

No. 12886.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

1. TRIAL —INSTRUCTIONS—APPLICABILITY TO PLEADING AND ISSUES.

A plaintiff must put his case to tie jury on the precise case made by his petition and proof, and, while the petition may be broader than the proof, the proof must not be broader than the petition, and the instructions must not be broader than the proof adduced and limited by the petition.

2. TRIAL — INJURIES TO PASSEGERS—INSTRUCTIONS.

In a passenger's action for personal injuries, where the proof showed that the proximate cause of the accident was a sudden and violent jerk of the train, whereby plaintiff was thrown to the ground and injured, and the petition based negligence on the jerking of the train, an instruction submitting the issue of whether defendant started the train before passenger could reach a place of safety was erroneous.

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

"Not to be officially published."

Action by Anthony Simms against Robert J. Dunham and Ford P. Harvey, as receivers of the Metropolitan Street Railway Company, and the Kansas City Elevated Railway Company for personal injuries. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Clyde Taylor and Charles A. Stratton, both of Kansas City, for appellants. Harding, Murphy & Harris, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, in attempting to board one of defendant's east-bound street cars at the elevated station on Wyoming street, in Kansas City, fell or was thrown off, and precipitated to the pavement 30 feet below. A friendly and ample snowbank fortunately was there, and received him into its bosom; else, doubtless, he would not have lived to complain of the fall. He brought this suit for damages, alleging specific negligence on the part of the operatives of the car. The jury returned a verdict for $3,000, upon which judgment was rendered, and defendant has appealed.

The petition charged that while the plaintiff was on the steps of said car, and before he had time to get within the doors and upon the platform thereof, said car was "suddenly and violently started, throwing plaintiff from said car" and from the depot platform to the street below, thereby permanently injuring him in specified particulars. The petition further alleged the negligence to be as follows: That it was the duty of defendants to hold the car at a standstill until plaintiff, with ordinary care and diligence, had reasonable opportunity to board said car in safety; that while plaintiff was on the steps of said car, and before he had gotten upon the platform of the car and inside its gates, the defendants "negligently and carelessly started said car, thereby throwing plaintiff from said car onto the pavement below as aforesaid"; that the defendants, "while plaintiff was in the act of boarding said car as aforesaid, and before he had gotten upon the platform of said car, carelessly and negligently started said car suddenly, and with a violent jerk, thereby throwing plaintiff from said car and onto the pavement below as aforesaid."

The plaintiff testified that there was an "awful quick jerk," a "severe jerk that unbalanced me," a "terrible jerk," and further said, clearly and explicitly, that it was the violent jerk that threw him off. The defendants' evidence was that the car started in the usual and ordinary way, with no jerk whatever; but that, after it was in motion, plaintiff came out on the platform, caught hold of the car, and tried to get on, but fell before he got either one of his feet on the car.

Plaintiff's instruction No. 1, which covered the case, submitted the issue of whether the defendants "carelessly and negligently started said car before the plaintiff had a reasonable time to get upon said car and to a place of safety," and thereby threw the plaintiff from said car. Said instruction also submitted to the jury the question of whether those in charge of the car, "by the exercise of the highest degree of care which would have been used by careful and skillful street railroad employés under like circumstances, could have prevented such movement, if any, of, said car at such time, and thereby have averted the injury, if any, to plaintiff, and negligently failed to do so." And the instruction told the jury that if they found these issues for the plaintiff, and that he was in the exercise of ordinary care, they should find for plaintiff. It will be observed that the instruction did not submit the question of whether the car was started with a ...