Thompson v. Metropolitan Street Railway Company

• Decision Date: 30 June 1896
• Citation: 36 S.W. 625,135 Mo. 217
• Parties: Thompson v. Metropolitan Street Railway Company, Appellant
• Court: Missouri Supreme Court

36 S.W. 625

135 Mo. 217

Thompson v. Metropolitan Street Railway Company, Appellant

Supreme Court of Missouri, Second Division

June 30, 1896

Appeal from the Johnson Circuit Court. -- Hon. W. W. Wood, Judge.

Reversed and remanded.

James W. Suddath, James Black, and Pratt, Ferry & Hagerman for appellant.

(1) If upon the undisputed testimony the verdict was for the right party, then the court below erred in granting a new trial on account of any alleged error. Homuth v. Railroad, 31 S.W. 903. (2) Upon the undisputed facts there was no negligence. Farley v. Co., 18 A. 1090; Keller v Railroad, 24 A. 159; Webowlsky v. Railroad, 48 N.W. 1097; Seddon v. Bickley, 25 A. 1104; Race v. Ferry Co., 34 N.E. 280. (3) There was no prejudicial error in defendant's instruction number 3. Boggess v Railroad, 118 Mo. 328. (4) There was no prejudicial error in defendant's fourth instruction. Devitt v Railroad, 94 Mo. 255; Matthews v. Co., 59 Mo. 474. (5) There was no error in refusing plaintiff's instruction number 4.

O. L. Houts and Hollis & Lithgow for respondent.

(1) The court committed no error in sustaining plaintiff's motion for a new trial. There was no error in instructions 3 and 4 given for defendant and error in refusing instruction asked by plaintiff. (2) There was no place in this cause for instruction number 3 of defendant. It was intended only to mislead and to inform the jury of another suit pending, and in the event of plaintiff's recovery to get a verdict for nominal damage. Price v. Breckinridge, 92 Mo. 378; Mound City, etc., Co. v. Conlon, 92 Mo. 221. There was no evidence upon which to base the instruction. Harbison v. Sanford, 90 Mo. 477. Instructions must be predicated upon the evidence. Miller v. Railroad, 90 Mo. 389. (3) When this court considers the relation of passenger and carrier, the duty of carrier to provide safe conveyance, and in the event of injury to passenger the only proof necessary for prima facie case is the relationship, the dangerous construction, and the injury on account thereof, which shifts the burden upon the defendant to exonerate itself. Dougherty v. Railroad, 97 Mo. 654. (4) The appellant did not attempt to show that its cars were not dangerous in their construction or that they were the most approved style and pattern that were in use so far as human foresight, skill, care, and safety for its passengers could suggest, but virtually admitted in this instruction plaintiff's right to recover if the jury could find that Mrs. Thompson's foot remained fastened until she got to the ground in her fall. The question of dangerous construction and negligence of defendant was for the jury. Bohucke v. Railroad, 22 N.Y.S. 712; 2 Redfield, Railways, notes, pp. 219, 220; Hegeman v. Railroad, 16 Barb. (N. Y.) 353. (5) This is not a case of "undisputed testimony" showing who is entitled to the verdict.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an appeal from an order setting aside a verdict for defendant.

Plaintiff sued for his damages as husband arising from injuries to his wife occasioned by a fall she received in alighting from an open summer car on defendant's street railway August 30, 1891.

The issue is very simple. The platform of these open cars is about twenty-three inches above the level of the street, as of course is necessary to the operation of open street cars, and to or from which people may readily ascend or descend in passing to and from the car. In order to make an easy passage way along the side of each open car there is what is known as a "foot" or "running" board for the full length of the car, about half way between the platform and the ground, making an easy step from the platform to the footboard and from the latter to the street. Each car has two pairs of wheels and these wheels protrude through the floor of the car under the seats to the height of two or three inches, and are covered with sheet iron. There is left a space of several inches between this covering and the side of the seat where it extends down to the edge of the car. The coverings over the front wheels are under the front single seats of the grip car.

On the day in question Mrs. Thompson, who had been in the habit of riding on these cars every day for years, and was presumably familiar therewith, rode on the train, in the front small seat of the grip car, and at her destination the train stopped for her to alight. While the car was standing still, and while she was in the act of alighting, she fell to the ground and was injured, and for his damages arising from this injury, the plaintiff, as the husband, sued.

Plaintiff's two witnesses testified that Mrs. Thompson caught her foot between the wheel cover and the side of the car and this caused her fall; whereas defendant's witnesses say the lady's fall was occasioned by her attempt to step from the platform to the ground without using the foot board.

At the plaintiff's request the court gave instruction 2, which read as follows:

"2. The court instructs the jury that the defendant was, on or about the thirtieth day of August, 1891, operating a line of street railway by cable, propelled by steam force in Kansas City, Missouri, and was a carrier of passengers for hire that as such, it was its duty to use in its business cars so constructed as to be reasonably safe for the ingress and egress of its passengers.

"You are further instructed that if you find from the evidence that the wife of the plaintiff did, on or about August the thirtieth, 1891, board one of defendant's cars for the purpose of being transported from one point to another on defendant's line of road, and you further find that when she arrived at her point of destination she attempted to alight from said car and that her foot slipped into a slot or crevice and was there held which caused her to fall and receive the injury complained of without fault on her part and if you further find from the evidence that the said slot or crevice was carelessly and negligently left in said car in its construction or that said defendant negligently permitted same to remain in said car and that the same was unnecessary...