Altwein v. Metropolitan Street Railway Co.

The opinion of the court was delivered by Smith, J.: This is an action to recover damages for personal injuries alleged to have been suffered by the plaintiff while she was a passenger upon the defendant’s street car in Kansas City, Kan.. In her petition she claims' that while she was a passenger upon such street car, the car approached the intersection of Eleventh street and Minnesota avenue and came to a standstill; that thereupon she alighted therefrom, and as she stepped on the lower step of the car it was care-jessly, negligently and violently started .forward by the motorman in charge with such force as to throw her off the car, down upon the pavement. She further alleged specially the extent of her injuries and the effects thereof, and prayed for damages in the sum of $2000 and costs. The answer was a general denial. The ■case was tried to a jury. The plaintiff and two or three witnesses in her behalf testified to facts substantially in accordance with the allegations of the petition. The conductor and mo [222] torman, who were in charge of the car, and two or three other witnesses testified, in substance, that the car had not stopped but was moving at the time the plaintiff stepped off and fell. The jury returned a verdict in favor of the plaintiff for $461. A motion for a neyv trial was overruled and judgment rendered according to the verdict. The defendant urges only four of the eight assignments of error set forth in the abstract. It is urged, in No. 1, that the court erred in permitting the plaintiff to testify in rebuttal that on the same trip and before the accident she heard the conductor say that he was behind time, and he hurried everybody up and started the car almost before the people could get on. Number 2 relates to similar objections to rulings upon the evidence of a witness, Mrs. Briggs, who testified to similar expressions of the conductor. Before this evidence was offered, Mr. Barber, assistant superintendent of the railway company, had testified that this particular car was not late, it was on time; that it was an extra car making an extra trip; that it really was not marked down on the time card for that trip. The evidence objected to was offered in rebuttal of these statements. It is also claimed that this was pertinent to show in what manner the car was handled at the time of the accident. In any event the evidence does not seem very material as several witnesses on each side testified as to how the car was'handled at the immediate time of the accident. The sixth instruction was as follows: “If you do not find from the preponderance of the evidence that the plaintiff was injured as a direct and natural result of the negligence of the defendant’s servants in starting the car in question while the plaintiff was in the act of alighting therefrom, then your verdict will be for the defendant.” The issue was thereby clearly defined to the jury, and the evidence of the witness, even, if impertinent, was not prejudicial. The third and fourth assignments of error may also [223] be considered together. The third claim of error is to the refusal of the court to give an instruction, ré-quested by the defendant, which reads as follows: “If you believe from the evidence that the plaintiff stepped from a moving car and in consequence thereof' received the injuries of which she complains, then your' verdict should be for the defendant.” In lieu thereof, and upon this is based the fourth assignment of error, the court gave the following instruction : “If you find from the evidence that the plaintiff stepped from the car in question while the same was moving and that such act on her part was the proximate cause of the injuries of which she complains, then your verdict should be for the defendant.” We think the latter is the better statement of the law. It will be observed that contributory negligence was not pleaded in defense, yet without such pleading, if the plaintiff did an act which was the proximate cause of her injuries, she could not recover, as the court plainly told the jury. Under the instruction asked by the defendant it would seem to be implied that the act of stepping from a moving car is negligence per se and ipso facto debarred a recovery. This proposition has-inferentially been decided adversely in Railway Co. v. Holloway, 71 Kan. 1, 80 Pac. 31. Also, in Irvin v. Railway Co., 81 Kan. 649, 106 Pac. 1063. Moreover, the instruction asked by the defendant and refused by the court would seem to put the question of' the defendant’s negligence in issue as fully as would an allegation in the answer that the plaintiff was guilty of contributory negligence in stepping from the car while it was moving. While it is true if, in such action,, the evidence of the party seeking to recover damages for an injury shows that the injury occurred through his own fault as the proximate cause he can not recover, it is also true that if the defendant, in such a case, relies-upon contributory negligence as a defense he must. al~ [224] lege and prove it. (Stevens v. Railway Co., 84 Kan. 447, 113 Pac. 398.) Under the Kansas code “the defendant may set forth in his answer as many grounds of defense ... as he may have.” (Civ. Code, § 97.) In K. P. Rly. Co. v. Pointer, 14 Kan. 37, it was said: “Contributory negligence on the part of the plaintiff is matter of defense; and if the record shows negligence of the defendant, and is silént as to the conduct of the plaintiff, a judgment for the plaintiff will be upheld.” (Syl. ¶ 4.) (See, also, K. C. L. & S. Rld. Co. v. Phillibert, 25 Kan. 582, 583; 29 Cyc. 580; 5 Encyc. Pl. & Pr. 10.) Without pleading contributory negligence, however, as a defense, the defendant in this action was entitled to introduce any evidence which tended to controvert the facts which the plaintiff was bound to establish in order to sustain her action. (Davis v. McCrocklin, 34 Kan. 218, 8 Pac. 196; Light Co. v. Waller, 65 Kan. 514, 70 Pac. 365; Railway Co. v. Brickell, 73 Kan. 274, 85 Pac. 297.) Under the pleadings in this case the plaintiff was not bound to prove that she did no act or that she did not omit to do any act, the doing of which or the.omission to do which contributed ■ to her injury. Hence, the defendant was not entitled to prove either that she did or omitted to do such acts. If, however, the plaintiff’s evidence was such that the jury might infer from it that the injury resulted from some act or omission ■of her own as the proximate cause thereof, the defendant was entitled to an instruction referring this question of fact to the jury. The court in this case gave the .jury just such an instruction. We think that there was a fair trial and that no substantial error was committed by the court. The judgment is affirmed.