Stewart v. St. Louis Public Service Co.

• Citation: 75 S.W.2d 634
• Decision Date: 08 November 1934
• Docket Number: No. 22954.,22954.
• Parties: STEWART v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Court of Appeal of Missouri (US)

75 S.W.2d 634

STEWART v. ST. LOUIS PUBLIC SERVICE CO.

No. 22954.

St. Louis Court of Appeals. Missouri.

November 8, 1934.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Action by Wells Stewart against the St. Louis Public Service Company. Judgment for defendant, and from an order granting plaintiff's motion for a new trial, defendant appeals.

Affirmed and cause remanded.

T. E. Francis and S. G. Nipper, both of St. Louis, for appellant.

Richard M. Molloy and C. O. Inman, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on January 3, 1931, while attempting to board one of defendant's west-bound Wellston street cars. Tried to a jury, a verdict was returned in favor of defendant, whereupon plaintiff moved for a new trial in due course. His motion was sustained by the court upon the ground of error in the refusal of an instruction requested by plaintiff; and from the order so entered, defendant has perfected its appeal to this court.

The petition simply charged that, while plaintiff was in the act of boarding the street car, and before he had had a reasonable time and opportunity to do so, and while he was in a position of danger in the doorway of the car, defendant negligently caused or permitted the car to move and the door to close and come in contact with plaintiff, whereby he was seriously and permanently injured. Damages were prayed for in the sum of $5,000.

The answer of defendant was a general denial, coupled with a plea of contributory negligence to the effect that whatever injuries plaintiff may have sustained were caused by his own carelessness and negligence directly contributing thereto in going towards the track and in close and dangerous proximity to a moving street car, when he saw or should have seen the street car in time to have avoided the accident.

The abstract includes only the testimony of plaintiff himself, which tended to substantiate the theory of the case as pleaded in his petition. Inasmuch as the sole point at issue does not depend upon the state of the evidence for its decision, counsel have very commendably limited their abstract accordingly.

Plaintiff received two instructions, No. 1 upon his theory of the case, and No. 2 upon the measure of damages. By his instruction No. 1 the jury were told that if they found that plaintiff was in the act of boarding the car while it was at a standstill, and that he was in the doorway and in a position of danger if the car was moved at that time, and if they further found that before plaintiff had had a reasonable time and opportunity to board the car, and while he was in such dangerous position, "the defendant negligently caused or permitted the said car to move, and negligently caused or permitted the door thereof to close, and that plaintiff was injured as a direct result thereof, and that plaintiff was at the time in the exercise of ordinary care for his own safety," then the verdict should be in favor of plaintiff.

Supplementary to his instruction No. 1, plaintiff also, but unavailingly, requested instruction C; and the error in its refusal is the ground upon which the court sustained the motion for a new trial. Instruction C was as follows:

"The court instructs the jury that it was the duty of the defendant in transporting persons and receiving them for passage to exercise the highest degree of care for the safety of said persons, that is, such degree of care as a very prudent person would exercise under the same or similar circumstances, and a failure to perform such duty would constitute negligence on the part of the defendant as that term is used in these instructions."

We think the court is to be sustained in its view that the refusal of instruction C was error warranting the grant of a new trial.

Though there are exceptions to the rule, as where the terms "negligence" or "negligently" are...