Willmott v. Corrigan Consolidated St. Ry. Co.

• Citation: 16 S.W. 500
• Parties: WILLMOTT v. CORRIGAN CONSOLIDATED ST. RY. CO.
• Decision Date: 25 May 1891
• Court: United States State Supreme Court of Missouri

16 S.W. 500

WILLMOTT v. CORRIGAN CONSOLIDATED ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 25, 1891.

INJURIES TO PASSENGERS — CONTRIBUTORY NEGLIGENCE.

1. A boy 12 years old was thrown from a street-car and injured. He was standing on the step of the front platform, and testified that he was thrown from the car by a sudden jolt after the driver had put his team into a rapid run. Held, that it was error to charge that it was not negligence in itself for the boy to stand on the step of the platform, and the error was not cured by another instruction which submitted the question to the jury.

2. The jury having failed to agree, they were brought into court and charged that if the boy was injured as charged in the petition by the negligence of the defendant their verdict should be for the boy, but if he was injured by his own carelessness in jumping from the car while in motion they should find for the defendant. Held, that the charge was misleading, and liable to divert the jury from the question whether it was negligence for the boy to stand on the platform.

Appeal from circuit court, Jackson county; JAMES H. SLOVER, Judge.

Plaintiff, a minor, brought this action by his next friend to recover for alleged personal injuries sustained while a passenger on one of defendant's street railway cars. His evidence tended to show this state of facts: Plaintiff was 12 years of age at the time of the accident, in September, 1885. He started down town about 3 o'clock P. M. with another boy about 14 years old. They boarded one of the street-cars of defendant's line, in Kansas City, Mo., some two blocks away from the point of the injury. The car was moving slowly at the time. It was in charge of a driver, who acted also as conductor. He was inside of the car, collecting fares, when the boys came aboard. They got on by way of the front platform. Plaintiff's companion took a position on the platform proper, and plaintiff himself remained on the lower step, his back towards the street, facing the other boy, his right hand grasping the hand-rail attached to the body of the car. There was plenty of vacant space inside the car. The boys paid their fares to the driver. Shortly after that, while the latter was standing on the front platform near the boys, driving the team of mules which formed the motive power, he suddenly commenced whipping his team vigorously, putting the mules into a rapid and irregular gallop. The car soon ran over some stone or other slight obstruction on the rail, causing the car to jolt suddenly, and throwing plaintiff off. The car ran over his leg, and inflicted serious injuries upon him. The explanation of the driver's conduct is given in the statement that an acquaintance of his got aboard the car at the front, and on being asked for fare, refused it; that the driver then said, "You'll have some fun getting off," and, when nearing the place where this party proposed to alight, the driver whipped the mules into their best speed, to increase the difficulty of his leaving the car. This action appears to have been intended as a sort of rough practical joke between these men. Its result, according to plaintiff's theory, was the injury sued for as a consequence of the negligence of the driver in handling the car and team in the manner described. The defendant asserted the contributory negligence of plaintiff, and denied all fault on its own part. The evidence on its side concedes that plaintiff was a passenger standing on the front platform near the driver, but tends to show that the car was moving at ordinary speed; that the boy was not jolted off in any way, but that he attempted to step off the front platform while the car was in motion, with a view to get on the rear platform as it passed, and in that attempt fell under the wheels and was hurt. The cause was tried before a jury. At the close of the testimony the court gave 6 instructions at plaintiff's instance, 16 for the defendant, modified and gave 10 others asked by defendant, and 1 of its own motion, — in all, 33. This was on April 27, 1888. The jury then retired for deliberation. On the 30th of April, no agreement having been reached, the court brought the jury back again, and of its own motion gave them another instruction, (the 34th,) as follows: "The petition of the plaintiff charges that the boy Samuel Willmott, while riding on the platform of one of defendant's cars on Eighteenth steet, in Kansas City, Mo., about the * * * 1888, was jostled off or thrown therefrom by reason of the person having charge of the car at that time negligently and carelessly driving over a small stone or obstruction upon the street-car track at an unusually high and dangerous rate of speed, and by reason thereof the boy was injured in the manner shown by the evidence. Now, the answer of the defendant denies all this, and further says that whatever injuries the boy may have received at that time, if any, were caused by his own negligence in jumping from and off the car while it was moving, and not because of any negligence on the part of the defendant or the driver in charge of the car. Now, if you believe from the evidence that the boy was injured at the time and place and in the manner charged in the petition, by the negligence of defendant, as above stated, then you should find for the plaintiff, but if you should find that the boy was injured by his own carelessness, as charged in the defendant's answer as above stated, then you should find for the defendant; and in arriving at your verdict, whether it be for the plaintiff or defendant, you have the right to take into consideration all the facts and circumstances of the case detailed in the evidence, to give such weight as you may think proper to the testimony of the various witnesses, and, if any witness has willfully testified falsely to any material fact in the case, you have the right to disregard the whole of his testimony." Before receiving any more instructions, the jury, on the same day, returned a verdict for plaintiff for $5,000 damages. The usual motions having been overruled and exceptions saved, the defendant took the pending appeal.

Pratt, Ferry & Hagerman, for appellant. Jones & Jones, and Crittenden, Stiles & Gilkerson, for respondent.

BARCLAY, J., (after stating the facts as above.)

From the sketch of the case given in the accompanying statement it is apparent that the issues presented at the trial were few and clear. The rules of law governing them are well established and can be stated in a few words.

1. Plaintiff was a passenger on defendant's railway car. As such, defendan...