Randolph v. Metropolitan Street Railway Co.

ELLISON, J. The plaintiff’s action is for personal injury received in consequence of being thrown from one of defendant’s street cars. The judgment in the trial court was for her. It appears that the car had [622] come to a stop at a street corner: where passengers were usually discharged and taken on. Plaintiff endeavored to get aboard with a view to being seated and transported to her destination. As she got upon the first step with her right hand holding the railing, the car suddenly started with a jerk, when, as she stated in her testimony, “I clutched with my left hand and hung, thinking I would be safe until I got to the next crossing, but my hold gave way and I fell.” Defendant objects to plaintiff’s instruction number 3, for using the term “proper care.”The instruction submitted to the jury the question whether the car was suddenly started while plaintiff was in the act of getting on the car and that the defendant’s servants “knew or by the exercise of proper care should have known that she was upon the step” in the act of getting on. We see no possible harm from the use of those words. The requisite care to he exercised by either party had already been properly stated to the jury, and it would be carrying technical objection beyond any reason to hold that any prejudicial error was committed in using the term to which objection is made. We do not regard the cases cited by defendant as at all in point. The second objection to the instruction is equally lacking in merit. It was that it read that if defendant’s servants started the car, or negligently permitted it to be started. There is no suggestion in the record of how that mode of expression could possibly have worked any harm or had any effect upon the verdict in any way. The court modified defendant’s instruction number 9, so as to have it read that plaintiff’s statements against her interest were presumably true instead of that the jury must regard them as absolutely true. The modification was proper. [Sheperd v. Transit Co., 189 Mo. 362; McCaffery v. Railway, 192 Mo. 144; McGinnis v. Printing Co. — Mo. App. —, 99 S. W. 7.] We do not see any objection to the court’s striking [623] out a reason which the witness Steward gave for an answer. He had not been asked for a reason and the answer was not responsive; and withal was harmless. We regard the verdict as not excessive under the evidence. The entire record discloses that the appeal is based upon objections which in no way affect the merits of the case and the judgment is affirmed. All concur.