Finger v. Wichita Railroad & Light Co.

The opinion of the court was delivered by Benson, J.: Among other things the court instructed the jury that: - “The burden is upon .the plaintiff to prove by the greater weight of the evidence, first, that he gave a signal, or told the conductor at what street he desired to get off; second, that the car slowed down to stop at the west side of Oak street, and that the plaintiff then [174] went upon the back platform, and stepped down on the step, preparatory to getting off, and that thereafter and before the car reached the west side of Oak street, the speed of the car was increased by a sudden jerk or jolt, which threw the plaintiff off, and that at the time the plaintiff stepped down upon the step, the car had then slowed down to such an extent that it was safe and prudent for the plaintiff to step down upon the step, and unless you find all of the above facts in favor of the plaintiff, you should find for the defendant.” The appellant requested an instruction as follows: “You are instructed that before you can find for the plaintiff in the above-entitled action, you must find from the greater weight of the evidence, that the car had slowed down to stop at the west side of Oak street and was moving so slow that the plaintiff, without being guilty of imprudence, could have stepped off of the car, and that as he was getting off the car suddenly started forward and threw him to the ground.” Thus it appears that upon the vital question in the case the court and counsel for the appellant were in harmony as to the rule of law, viz., that the plaintiff might recover if the car was moving so slowly that it was not negligent or imprudent for the passenger to attempt to alight, and the car was suddenly and negligently started forward with such force as to throw him to the ground and injure him while he was making the attempt. There was a conflict in the evidence upon the questions whether the appellee negligently attempted to leave the car before it reached the proper stopping place; or whether he waited until it was at the proper place, and practically stopped so that he might prudently alight. Also, whether there was a sudden start or jerk of the car forward while he was attempting to get off. There was no testimony other than that of the passenger and the conductor. Upon proper instructions the jury found for the appellee and the judgment can not be disturbed. [175] It is argued in the brief of the appellant that the appellee was negligent per se in attempting to leave the car while in motion, but this contention was not in harmony with its request for an instruction, quoted above. A passenger is not chargeable with negligence as a matter of law merely because he alights from a street car at a regular stopping place after it has been practically stopped for that purpose. Whether it was negligent for the appellee to do so in this instance in the circumstances shown was a question of fact for the jury. (A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491; Burke v. Bay City Traction, etc., Co., 147 Mich. 172; Puget Sound Electric Ry. v. Felt, 181 Fed. 938; 6 Cyc. 648.) The judgment is affirmed.