Taylor v. Wells

• Citation: 7 S.W.2d 424
• Decision Date: 27 June 1928
• Docket Number: No. 20302.,20302.
• Parties: TAYLOR v. WELLS.
• Court: Court of Appeal of Missouri (US)

7 S.W.2d 424

TAYLOR v. WELLS.

No. 20302.

St. Louis Court of Appeals. Missouri.

June 27, 1928.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Flora E. Taylor against Rolla Wells, Receiver of the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Affirmed.

S. F. Pinter and Brownrigg, Mason & Altman, all of St. Louis, for appellant.

T. E. Francis and B. G. Carpenter, both of St. Louis, for respondent.

BECKER, J.

Plaintiff below appeals from a judgment in favor of the defendant resulting from a verdict of the jury against her in her action for damages for personal injuries.

Plaintiff's petition alleges that at the southeast corner of Eighteenth and Chestnut streets in the city of St. Louis, one of the street cars of the defendant company stopped for the purpose of discharging and receiving passengers; that plaintiff, while the car had thus stopped, undertook to board the same, placed her foot on the step and her hand on the handrail, at which juncture the conductor raised the step by pulling the control lever, thereby dislodging plaintiff's foot; and that the act of the said defendant, through his said conductor, in so pulling said lever and throwing plaintiff off said step, under the circumstances, was negligence; and that defendant knew or in the exercise of ordinary care should have known that plaintiff was then and there undertaking to board the car.

The answer was a general denial.

At the close of the case the court, at the request of plaintiff, gave the jury instructions which fairly and fully submitted plaintiff's case to the jury upon the assignment of negligence set out in her petition.

For the defendant the court read the jury the following instructions:

(2) "The court instructs the jury that the specific act of negligence charged in this case is: That plaintiff, on the 11th day of April, 1925, about 8:15 p. m., while one of the street cars operated by the defendant on what is known as the belt line stopped at the southeast corner of Eighteenth and Chestnut streets, in said city and state, for the purpose of discharging and receiving passengers, and while said car was stopped at said point for said purpose plaintiff undertook to board said car, grasped the handrail, and placed her foot on the step for said purpose while the car was standing still, and at the same time, while she was undertaking to board said car, the conductor in charge of same pulled the lever by which the step is controlled so as to raise the same, thereby dislodging plaintiff's foot and throwing her off the step. If you find and believe from the evidence that said step was not raised and that plaintiff's fall, if she did fall, was caused in any other manner or from any other cause whatsoever, then plaintiff cannot recover, and your verdict must be for the defendant, Rolla Wells."

(3) "The court instructs the jury that the burden of proof rests upon the plaintiff to prove, by a preponderance, that is, the greater weight of the credible testimony, that the defendant's conductor in charge of defendant's said street car negligently and carelessly pulled the lever by which the step is controlled so as to raise the same, thereby dislodging plaintiff's foot and throwing her off of said step of said car. If the plaintiff has not shown said facts by the greater weight of all the credible testimony in this case, or if you find and believe from the evidence that plaintiff's fall, if she did fall, was occasioned in any other manner or from any other cause, then plaintiff is not entitled to recover, and your verdict must be for the defendant."

Plaintiff here on appeal assigns as error that in each of the above-quoted instructions the court erred in that in each of said instructions it not only instructed the jury as to the specific act of negligence which plaintiff was bound to prove, but went much farther, in that it gave the jury a roving commission to go outside of the evidence into the field of speculation as to in what other manner plaintiff might have had a fall and been injured, and in submitting to the jury as to whether or not the step was raised, when all the evidence, including the defendant's, showed that the step was raised. And there is the further assignment of error as to instruction No. 3 that it required the jury to find the defendant guilty of a greater degree of negligence than would suffice for a verdict under plaintiff's petition and the evidence.

In analyzing these assignments of error we have in mind the fact that plaintiff was properly held to have made out a case for the jury, and that her case was submitted to the jury under instructions which fairly and fully submitted her case to the jury upon the sole assignment of negligence pleaded in her petition, namely, that the conductor in charge of the car, while the car was stopped for the purpose of taking on passengers and after the plaintiff had grasped the handrail and placed her foot on the step of the car for the purpose of becoming a passenger, and while the car was standing...