Weise v. Harrison

• Decision Date: 06 January 1936
• Docket Number: No. 18462.,18462.
• Citation: 89 S.W.2d 148
• Parties: WEISE v. HARRISON.
• Court: Missouri Court of Appeals

89 S.W.2d 148

WEISE v. HARRISON.

No. 18462.

Kansas City Court of Appeals. Missouri.

January 6, 1936.

Appeal from Circuit Court, Boone County; North T. Gentry, Spl., Judge.

"Not to be published in State Reports."

Action by Mrs. LeMoyne Weise against Clyde Harrison. Judgment for plaintiff, and defendant appeals.

Affirmed.

Jones & Wesner, of Sedalia, and N. T. Cave, of Columbia, for appellant.

Frank T. Armstrong, of Sedalia, and T. C. Swanson and Trusty & Pugh, all of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5000.00. Defendant has appealed.

The facts show that on February 15, 1934, plaintiff called a taxicab in Sedalia, owned and operated by the defendant, for the purpose of having herself, her baby and her effects transported to her home in that city. When the taxicab arrived at her home she alighted therefrom and was standing in front of the cab's door, which opened to the rear, when the taxicab suddenly moved forward and the door struck plaintiff and knocked her down, to her injury.

Defendant testified that the sudden movement of the taxicab was caused by his effort to obtain a bottle of milk on the opposite side of the cab from where he sat; that the motor was running; and the car was in gear but he held the clutch and the brake pedals down with his feet; that when he reached for the milk his foot slipped from the clutch causing it to engage and the car to move forward with a sudden jerk.

Complaint is made of the giving of plaintiff's instruction No. 1. This instruction first requires the jury to find that, when the taxicab stopped, plaintiff alighted therefrom and stood on the ground near the running board in a position where she would likely be struck and injured if the vehicle moved forward and the door thereof was caused to swing. It then submits that "If you further find from the evidence that while the plaintiff was in such a position the defendant caused or allowed said taxicab to suddenly start up and the door to suddenly strike her and that he did so without reasonable warning to plaintiff, and that said door did strike her and knock her down and that she was thereby injured; and if you further find from the evidence that in so causing or allowing said taxicab to so suddenly start up and the door to strike her under all the circumstances you find by the evidence, the driver thereof failed to exercise the highest degree of care, then you are instructed that he was guilty of negligence; and if you further find from the evidence that such negligence of the driver directly caused the plaintiff to be struck by said door and knocked down and injured, then it becomes your duty to render a verdict in favor of the plaintiff." (Italics ours.)

It is insisted that the instruction "does not limit the jury to the specific facts alleged in the petition but authorizes the jury to consider all the circumstances found by the evidence in determining whether defendant exercised the highest degree of care"; that the instruction "broadens the issue made by the pleadings in that, in addition to the sudden starting of the car and the striking of plaintiff by the door, it permits the jury to reach out and determine from all the circumstances in evidence whether the driver failed to exercise the highest degree of care. It does not limit the jury to the determination of the facts alleged in the petition."

The petition alleges that the "plaintiff got out of the left door onto the ground and reached into said taxicab to obtain some articles that belonged to the plaintiff, and while she was in such position, and without warning to her, said defendant, Harrison, negligently caused or allowed said taxicab to suddenly start up, and caused the door of said taxicab to come into contact with her and knock her down on said street."

While the use of the words italicized in the instruction seems unusual it clearly contains no error of the character suggested by the defendant. The words "under all of the circumstances...