Wren v. Metropolitan Street Railway Company
| Decision Date | 03 June 1907 |
| Citation | 102 S.W. 1077,125 Mo.App. 604 |
| Parties | ANNA C. WREN, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John H Lucas, Ben T. Hardin and Halbert H. McCluer for appellant.
(1) The petition does not state facts sufficient to constitute a cause of action. Cramer v. Traction Co., 112 Mo.App 363; Hurt v. Railroad, 94 Mo. 263; Deming v Railroad, 80 Mo.App. 156. (2) The court erred in giving plaintiff's instruction number one. See authorities under point I. (3) The court erred in refusing to give defendant's instruction number thirteen. Madison v. Railroad, 60 Mo.App. 608; Gray v. McDonald, 28 Mo.App. 492; Kraft v. McBoyd, 32 Mo.App. 309. (4) The court erred in admitting and rejecting evidence. First: Evidence of Dr. Wedding as to what caused the injury to plaintiff. Second: Rejecting evidence of the witness Frank M. Wilcox, as to when and how cars should be started. Gracy v. Bank, 120 Mo. 161; Lenox v. Harrison, 88 Mo. 496.
William R. Moore and Ellison & Turpin for respondent.
(1) The petition is sufficient. (2) Plaintiff's instruction number one embodies all of the elements in the case that the jury were required to find in order to entitle plaintiff to recover. (3) Defendant's instruction thirteen contains nothing to which the defendant was entitled which was not included in defendant's instructions numbered 4 and 5, which were given. Connolly v. Printing Co., 166 Mo. 452; State v. Nelson, 166 Mo. 207; State v. Thornhill, 177 Mo. 695. (4) Rulings of court on evidence.
The plaintiff's action is for injuries alleged to have been received by reason of defendant's negligence. She prevailed in the trial court. The negligence charged consisted in starting the car with a sudden jerk while plaintiff was in the act of alighting by stepping from the platform to the car step in order to reach the street, whereby she was thrown down onto the street. There was evidence tending to support plaintiff's case and there was also evidence tending to support the defense.
A number of objections were taken by defendant which we deem not sound. We think the petition states a cause of action and but for what would seem to be an inadvertent refusal of defendant's instruction number 13, to which it was manifestly entitled, we would see no cause for interference. The evidence showed the car to have been crowded and that plaintiff had some difficulty in making her way to and over the platform as the car stopped. Some one called to the passengers who were standing to make room for her as she wished to get off. While there was ample evidence to support her theory that she was thrown by sudden jerk of the car while in the act of getting upon the step, yet there was other direct and affirmative evidence that she fell by reason of having caught her foot in her dress, or by some one stepping upon her dress. Refused instruction 13, was that if she fell or was thrown down by reason of either of those things, she could not recover.
Plaintiff does not dispute but that the instruction was proper, but does contend that there was no error in its refusal in that it was covered by numbers 4 and 5, which were given. Those instructions were to the effect that plaintiff could only recover on the grounds of negligence charged in the petition and that if she was injured from any other cause she could not recover. They were such general instructions as are given in all this class of cases; and if they cut off the right to any further or direct instructions of specific points of defense the trial of cases of this character would be greatly shortened. It could just as well be argued that plaintiff's instructions made any for defendant unnecessary, for the first one given informs the jury...
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