Sterrett v. Metropolitan St. Ry. Co.

• Citation: 123 S.W. 877
• Parties: STERRETT v. METROPOLITAN ST. RY. CO.
• Decision Date: 23 December 1909
• Court: United States State Supreme Court of Missouri

123 S.W. 877

STERRETT v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1909.

Rehearing Denied January 4, 1910.

1. APPEAL AND ERROR (§ 302) — PRESENTATION OF GROUNDS — MOTION FOR NEW TRIAL.

Where a motion for a new trial specifically points out evidence which appellant claims should have been admitted, or instructions which should have been given or refused, and contains no general charge of error as to the evidence or instructions, appellant is bound by the motion and cannot assign errors not within it on appeal.

2. APPEAL AND ERROR (§ 302) — PRESENTATION OF GROUNDS — MOTION FOR NEW TRIAL — STATEMENT OF GROUNDS — INSTRUCTIONS.

Where a motion for a new trial alleged error, in that the court refused to give instructions numbered, etc., offered on the part of plaintiff, and compelled plaintiff's counsel to modify the same, the objection indicated that, on the court refusing the original instructions, plaintiff retendered them in their modified form, and that they were then given, which amounted to a withdrawal of the original instructions, and a reoffer of the instructions by plaintiff as modified, thereby precluding her from objecting thereto on appeal.

3. APPEAL AND ERROR (§ 301) — ERRORS REVIEWABLE — NEW TRIAL — GROUNDS.

An error appearing from other parts of the bill of exceptions cannot be reviewed unless it was alleged as a ground for new trial.

4. CARRIERS (§ 316) — INJURIES TO PASSENGER — NEGLIGENCE.

Where a passenger specifies the negligence relied on by her for recovery, the burden is on her to establish the negligence alleged by a preponderance of the evidence.

5. CARRIERS (§ 321) — INJURIES TO PASSENGER — ISSUES.

Where, in an action for injuries to a street car passenger, the petition, which was unamended, alleged that the car was started suddenly and rapidly, and that defendant's servants should, or by diligence could, have known that plaintiff was in the act of boarding, an instruction correctly reciting the negligence pleaded, and charging that no other acts or conduct on defendant's part would authorize a recovery, and if plaintiff failed, by a preponderance of the proof, to show that she received her injuries as alleged, she could not recover, was not error.

6. EVIDENCE (§ 213) — RELEVANCY — OFFER OF COMPROMISE.

A blank release taken by defendant's claim agent to plaintiff, which she refused to sign, was properly excluded as an instrument prepared in the course of an attempted compromise and settlement.

Appeal from Circuit Court, Jackson County; William B. Teasdale, Judge.

Action by Clara Sterrett against the Metropolitan Street Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Theoph L. Carns, for appellant. John H. Lucas and Ben T. Hardin, for respondent.

GRAVES, J.

Plaintiff, alleging herself to be a passenger of the defendant, brings this suit to recover damages for an injury to her knee which she claims was occasioned by a fall in an attempt to board one of defendant's cars. She claims to have been carrying a basket of hand-painted china in each hand and got upon the step of the car while it was yet standing, but that before she could step to the platform, and whilst she was in the act of stepping from the step to the platform, the car suddenly started, and she was thrown down on the platform and received the injury complained of in this action. The place is located at Fifteenth street and Troost avenue in Kansas City, where defendant maintains a street railway system. The important parts of the petition are couched in this language: "She went to the corner of said Fifteenth street and Troost avenue, where the defendant at all times stopped its cars for the purpose of receiving and discharging passengers, and, when said car approached her from the west, she signaled the defendant's servants in charge of said car to stop in order that she might board said car. That defendant's said servants saw this plaintiff and stopped said car in order that she might board the same, and that plaintiff, with due diligence and care, proceeded to board said car in the usual manner. That while plaintiff was in the act of boarding said car, and immediately after she had stepped upon the first step of said car and was in the act of stepping upon the platform of the same, and before she had sufficient time to get upon the platform, the servants and employés of the defendant in charge of said car negligently started said car forward suddenly and at a rapid rate of speed, and thereby threw plaintiff forward with great force, and thus caused her to fall upon said platform, and that in so doing she struck her left knee upon said platform with great force and violence, and thereby greatly bruised and sprained said knee and the bones, ligaments, cartilages, and membranes thereof. Plaintiff states that her said injuries have resulted from the negligence of the defendant's servants in starting said car before plaintiff had time to board the same in safety, and in starting the same so suddenly and rapidly as to throw plaintiff upon said platform as aforesaid, and that said servants knew that plaintiff was in the act of boarding said car, at said time and place, or by the exercise of reasonable diligence could have known the same." Damages were alleged to be in the sum of $15,000. For answer the defendant interposed a general denial and a plea of contributory negligence. Reply was a denial of the new matter in the answer. The jury found a verdict for the defendant upon which judgment was entered, and from this judgment the plaintiff has appealed to this court.

Plaintiff testified in her own behalf, and her testimony meets the allegations of her petition, save and except that her statement is somewhat conflicting as to any sudden and rapid starting of the car, as will be shown when that point is reached. She says the motorman saw her as she started to get on the car, but did not see her as she fell, and that after the fall she was helped up by two men, neither of whom was at the trial. She says that she made no outcry and went on home, without notifying any of the trainmen. This she did, as she avers, because she did not think she was injured much. It also appears that some 13 days after the accident the defendant mailed to plaintiff a blank proof of loss. This she filled up at her own home and mailed to the company. In that she only claimed as damages and loss the broken dishes, which she valued at $30. In this written report she says the car stopped, but nothing about the alleged fact that it stopped upon her signal. The defendant by its evidence took the position that no accident ever occurred. To this end they put on all the motormen who passed over the line anyway near the time of the alleged accident, and none of them ever saw plaintiff or heard of her alleged fall and injury. From the aunt of plaintiff it is made to appear that, within a few days after the accident, she called at the office of the company and notified them of the breaking of the china and that she was the owner thereof. It is perhaps through this information that the company came to send the blank to plaintiff for her claim. Plaintiff's testimony, shaken in many respects, stands alone upon the question of her attempting to board the train and upon the question of whether or not she was injured by defendant or its servants. From her testimony it would appear that the car was fairly filled with passengers. She produces no one to corroborate her, and defendant, not notified at the time of the injury, as stated by plaintiff, puts in the proof above indicated. Questions raised turn largely upon the instructions. Plaintiff says that the trial court so misdirected the jury that it was induced to decide against her. Defendant says that the testimony of plaintiff was so shattered by her own contradictions and other proof that no jury would believe her. The instructions and the points made thereon, as well as the applicable evidence, will be noted in the course of the opinion. This brief statement will suffice for a discussion of the errors assigned.

1. In the motion for new trial set out in the abstract are 14 errors charged to the trial court. Three are general, thus: (1) Verdict is against the law; (2) verdict is against the evidence; and (3) verdict is against the law and the evidence. The remaining alleged errors are highly specific; that is, when error is charged as to the refusal to admit evidence, the evidence refused is pointed out, and, when it comes to the giving and refusing of instructions, the instructions are specifically pointed out. In the brief there are 14 assignments of error, not corresponding, however, in detail to the motion for new trial nisi. Where the motion for new trial specifically points out the evidences which appellant says should have been admitted, or the instructions which should have been given and were not given, or the instructions which were given and should not have been given, and contains no general charge of error in admitting or rejecting evidence, or in giving or refusing instructions, then the appellant is bound by the terms of his motion below, and cannot go beyond it for assignment of errors here. In the motion for new trial it is urged that the court erred in refusing to permit the plaintiff to prove and put in evidence a certain receipt which had been prepared for plaintiff to sign. This is specifically charged as the evidence improperly rejected, and no other statement about the admission or exclusion of evidence is found in the motion. The instructions complained of are specifically named by number, in the motion; but there were some given which are not mentioned. Where there are highly specific allegations of error in the motion for new trial, and no general allegations to reach other alleged errors, the assignment of errors here must conform to the specific assignments made in the motion. Of course, had the motion for new...