Sterrett v. Metropolitan Street Railway Co.

GRAVES, J. Plaintiff alleging herself to be-a passenger of the defendant brings this suit to recover damages for an injury to her knee, which she claims was occasioned by a fall in an attempt to board one of defendant’s cars. She claims to have been carrying — 103 — a basket of band-painted cbina in eaeb band and to bave mounted tbe step of tbe car while it was yet standing, but that before she could step to tbe platform, and whilst she was in tbe act of stepping from tbe step to tbe platform, tbe ear suddenly started and she was thrown down on tbe platform and received tbe injury complained of in this.action. Tbe place is located at Fifteenth street and Troost avenue in Kansas City, where defendant maintains a street railway system. Tbe important parts of tbe petition are couched in this language: “She went to tbe corner of said Fifteenth street and Troost avenue where tbe defendant at all times stopped its cars for tbe purpose of receiving and'discharging passengers, and when said car approached her from tbe west, she signaled tbe defendant’s servants in charge of said car to stop in order that she might board said car. That defendant’s said servants saw this plaintiff and stopped said car in order that she might .board tbe same; and that plaintiff, with due diligence and care, proceeded to board said car in tbe usual manner. That while plaintiff was in tbe act of boarding said car, and immediately after she bad stepped upon tbe first step of said car and was in tbe act of stepping upon the platform of tbe same, and before she bad sufficient time to get upon tbe platform, tbe servants and employees of tbe defendant in charge of said car, negligently started said car forward suddenly and at a rapid rate of speed and thereby threw plaintiff forward with great force and thus caused her to fall upon said platform, and that in so doing, she struck her left knee upon said platform with great force and violence, and thereby greatly bruised and sprained said knee and tbe bones, ligaments, cartilages and membranes thereof. “Plaintiff states that her said injuries bave resulted from tbe negligence of tbe defendant’s servants in starting said car before plaintiff bad time to — 104 — board the same in safety, and in starting the same so suddenly and rapidly as to throw plaintiff upon said platform 'as aforesaid; and that said servants knew that plaintiff was in the aet of boarding said ear, at said time and place, or by the exercise of reasonable diligence could have known the same.” Damages were alleged to be in the sum of fifteen thousand dollars. For answer the defendant interposed a general denial and a plea of contributory negligence. Reply was a denial of the new matter in the answer. The' jury found.a verdict for the defendant, upon which judgment was entered and from this judgment the plaintiff has appealed to this court. Plaintiff testified in her own behalf and her testimony meets the allegations of her petition, save and except that her statement is somewhat conflicting as to any sudden and rapid starting of the car, as will be shown when that point is reached. She says the motorman saw her as she started to get on the car but did not see her as she fell, and that after the fall she was helped up by two men, neither of whom was at the trial. She says that she made no outcry and went on homé, without notifying any of the train men. This she did, as she avers, because she did not think she was injured much. It also appears that some thirteen days after the accident the defendant mailed to plaintiff a blank proof of loss. This she filled up at her own home and mailed to the company: In that she only claimed as damages and loss the broken dishes, which she valued at $30. In this written report she says the car stopped, but nothing about the alleged fact that it stopped upon her signal. The defendant by its evidence took the position that no accident ever occurred. To this end they put on all the motormen who passed over the line anyway near the time of the alleged accident, and none of them ever saw plaintiff or heard of her alleged fall and in — 105 — jury. From tire aunt of plaintiff it is made to appear that within a few days after the accident, she called at the office of the company and notified them of the breaking of the china and that slie was the owner thereof. It was perhaps through this information that the company came to send the blank to plaintiff for her claim. Plaintiff’s testimony, shaken in many respects, stands alone upon the question of her attempting to board the train and upon the question of whether or not she was injured by defendant or its servants. From- her testimony it would appear that the car was fairly filled with passengers. She produces.no one to corroborate her, and defendant, not notified at the time-of the injury, as stated by plaintiff, puts in the proof above indicated. Questions raised, turn largely upon the instructions. Plaintiff says that the trial court so misdirected the jury that it was induced to decide against her. Defendant says that the testimony of plaintiff was so shattered by her own contradictions and other proof that no jury would believe her. The instructions and the points made thereon, as well as the applicable evidence, will be noted in the course of the opinion. This brief statement will suffice for a discussion of the errors assigned. I. In the motion for new trial set out in the abstract are fourteen errors charged to the trial court. Three are general, thus: (1) verdict is against the'law, (2) verdict is against the evidence, and (3) verdict is against the law and the evidence. The remaining alleged errors are highly specific. That is, when error is charged as to the refusal to admit evidence, the evidence refused is pointed out, and when it comes to the giving and refusing of instructions, the instructions are specifically pointed out. In the brief there are fourteen assignments of error, not corresponding however in detail to the motion for new trial nisi. — 106 — Where the motion for new trial specifically points out the evidence which appellant says should have been admitted, or the instructions which should have been given and were not given, or the instructions which were given and should not have been given, and contains no general charge of error in admitting or rejecting evidence, or in giving or refusing instructions, then the appellant is bound by the terms of his motion below, and cannot go beyond it for assignment of errors here. In the motion for new trial it is urged' that the court erred in refusing to permit the plaintiff to prove and put in evidence a certain receipt which had been prepared for plaintiff to sign. This is specifically charged as the evidence improperly rejected and no other statement about the admission or exclusion of evidence is found in the motion. The instructions complained of are specifically named by number, in the motion, but there were some given which are not mentioned. Where there are highly specific allegations of error in the motion for new trial, and no general allegations to reach other alleged errors, the assignment of errors here must conform to the specific assignments made in the motion. Of course had the motion for new trial charged that the court gave improper declarations of-law for the defendant, this might have included .'all assignments here that could be gotten out of this general charge, but there is no such general charge in this motion for new trial, either as to evidence or instructions. This defect in the motion for new trial takes from our consideration all assignments of error here numbered from 9 to 14, inclusive, and at least a part of assignments 7 and 8. When in a motion for new trial the party says to the court, You erred in refusing to admit this particular evidence, and upon the question of evidence says no more, then that is the only error to which tha — 107 — trial court’s attention has been called, and can be the only assignment of error here. So also as to instructions. II. The record before us presents another singular aspect in the motion for new trial. It would appear that the plaintiff offered some seven instructions of which three were given. The other four were modified and given. As to how these instructions were modified plaintiff’s motion for new trial says: “10. Because the court erred in refusing to give instruction numbered 1, offered on the part of the plaintiff, in the condition it was in when offered, and thus compelling plaintiff’s counsel to modify the same, as given. ’ ’ The motion speaks in the same language as to the other three instructions. Now under this language of the motion what is the error charged to the trial court ? As I take it the plain meaning of the language is that plaintiff tendered to the court these four instructions, and the court indicating that he would not give the same in that- form, the plaintiff modified her own instructions and they were then given. The error charged is that the court compelled the plaintiff to modify her own instructions, not that the court modified them of its own motion and gave them as modified. In other words the act of modifying these instructions, as is stated in this motion, was the act of the plaintiff and not that of the court. True, it is said that the court compelled this action by refusing the instruction as tendered, but that will not do. Counsel should, if they desire to preserve a point, tender the instruction and if it is refused, save an exception, and if it be modified by the court and then given, save an exception to the modified instruction. But beyond all, in the motion for new trial he should have charged the act of modification as the act of the court, not the act of the plaintiff under compulsion of — 108 — the court. A court can’t compel a plaintiff to modify an instruction. The language of this motion would indicate that the plaintiff took the instructions tendered and changed iand modified the same and then re-asked them. This would amount to a withdrawal of the original instructions and a tender of the modified instructions by the plaintiff. In that light the four assignments of error upon these four instructions must fall. But even if we divide the assignment of error in the motion for new trial contained and say that it charges (1) that the court refused the instructions, and (2) that thereby the court compelled the plaintiff to modify them, how stands the point for review here? We might say that we could review the act of the court in refusing the four instructions, but we cannot review the act of the plaintiff in modifying her own instructions and having them given. Nor can we review a charge that .the court modified the instructions, because there is no such charge in the motion for new trial. In other words, so far as the question /here for review is concerned the modified instructions must be considered as plaintiff’s instructions. But conceding that we should review the act of the court in refusing the instructions in the form plaintiff offered them and before she modified them, let us see if there was error. The charge is practically the same in all four instructions and goes to striking out a few words so as to make a proper connection to add a clause to this effect: ‘ ‘ that defendant’s servants knew or by the exercise of such diligence could have known that she was boarding the car. ’ ’ The diligence referred to had been defined to be the highest degree of care of a very careful and prudent person. Instruction No. 2 in each series is a fair sample and we give'it first as asked and then as modified. “2. The court instructs you that if you find from — 109 — the evidence that the plaintiff became a passenger on one of the cars of the defendant, at the time and place referred to in other instructions, then it became the dnty of the defendant to nse and exercise that high degree of care, caution and foresight fox the safety of the plaintiff that a very careful and prudent person would use and exercise under like circumstances. And if you find from the evidence that the plaintiff proceeded with reasonable diligence to board said car and that, while she was in the act of boarding the same and before she had time to properly board it in safety, the defendant’s servants started said car and injured plaintiff thereby; and if you find that defendant’s servants started said car sooner than a very careful and prudent person would have done tinder like circumstances, then the defendant was negligent in said particular; and if you find that plaintiff was injured' through such negligence, if any, .then your verdict will be for the plaintiff.”' This is instruction No. 2 as asked. As modified it reads: ‘ ‘ 2. The court instructs you that if you find from the evidence that the plaintiff became a passenger on one of the cars of the defendant at the time and place referred to in other instructions, then it became the duty of the defendant to use and exercise that high degree of care, caution and foresight for the safety of the plaintiff that a very careful and prudent person would use and exercise under like circumstances. And if you find from the evidence that the plaintiff proceeded with reasonable diligence to board said car and that defendant’s servants knew or by the exercise of such diligence could have known that she was boarding the same and that, while she was in the act of boarding the same, the defendant’s servants started said car and' injured plaintiff thereby; then the defendant was negligent in said particular; and if you find that plaintiff — 110 — was injured through, such negligence, if any, then your verdict will he for the plaintiff. ’ ’ It will be observed that the modified instruction contains every element contained in the original, but there is injected therein the clause concerning the knowledge of the defendant’s servants as to her boarding the car at the time. Under the motion for new trial this change in the instruction was made by plaintiff and it became her own act and of this she cannot complain. The modification was made and the instruction given and no charge is made in the motion that the modification was the act of the court, but to the contrary. If, then, this modified instruction contained all the features of the old instruction, with an additional feature placed therein by the plaintiff, there was no error in refusing it. Suppose the plaintiff had presented at the same time both instructions above set out, and the court had refused the first and given the second, we could not say there was error, because the Tatter included all the elements of the first and both were plaintiff’s requests. It appearing from plaintiff’s motion for new trial that the modification made to the instruction was made by plaintiff it was her instruction given by the court and included all 'the things contained in the one refused. But a step further, whilst it is not necessary to pass upon the question, and we do not pass upon it for that reason, yet we are not so sure that, in view of the fact that defendant was contending that plaintiff was not at the place where she says she boarded the car, and was not a passenger at that time, this was not a proper instruction under the facts. What has been said of instruction No. 2 applies with equal force as to the other three instructions on plaintiff’s side of the case. That is, under the motion for new trial they are all plaintiff’s instructions, of which she cannot complain, and if not plaintiff’s instructions she has not in her motion charged as error — 111 — upon the part of the court the modification of such instructions. It is to the motion for new trial we must go for reviewable errors, and however great and glaring the error may he, as appears from other parts of the hill of exceptions, yet if the trial court’s attention has not been again called to it in the motion for new trial it is not matter for consideration here. This disposes of the complaints as to plaintiff’s instructions. III. Plaintiff has much to say in her brief about the start of the car being the gravamen of the charge of negligence and that the suddenness and rapidity of the start were not of the essence of the charge. In other words that the suddenness and rapidity of the start were non-essential details. So far as the instructions given for the plaintiff are concerned, the suddenness and rapidity of the start are entirely eliminated, and the plaintiff by such instructions was permitted to recover if the jury found that the car was started and nothing said about suddenness or rapidity, the language used being, “wlfile she was in the act of boarding the same, the defendant’s servants started said car and injured plaintiff thereby; then the defendant was negligent in that particular.” So that as far as her instructions were concerned, the much discussed question of the case is out. IV. It is next urged that there was error in defendant’s instruction numbered 2. This instruction tells the jury that the burden of proof is upon the plaintiff throughout the case to establish the negligence submitted in the instruction. The petition in this case rests upon specific negligence charged. It is not a general charge of negligence. Where the plaintiff, even though a passenger, specifies the negligence relied upon by her for recovery, the rule has always placed upon the plaintiff the duty to carry the burden and make her case by a preponderance of the evidence. Practically the same instruction was under re — 112 — view in Gardner v. Met. Street Ry. Co., recently banded down. So similar are the two that the plaintiff in this case cites the Gardner case, prior to its decision, as authority on the point in hand. In paragraph eight in the Gardner opinion, Wood sow, J., overrules the contention of counsel there, and his reasoning applies here, as do also the authorities by him cited. There was no error in giving this instruction. V. It is next complained that defendant’s instruction numbered 4 was wrongfully given, and for that error the case should be reversed. The first part of the 'instruction simply recites, and truthfully recites, the negligence pleaded in the petition. A comparison of the portion of the petition set out in the statement with the instruction will show this fact. The said instruction reads: “You are further instructed that the only negligence charged against the defendant in this case is that while plaintiff was boarding a car at Fifteenth and Troost avenue while the same was standing still said car was negligently started forward rapidly and so suddenly that the plaintiff was thereby thrown upon one knee and injured, and that defendant knew or by the use of reasonable diligence could have known that plaintiff was in the act of boarding said car. Now the court instructs you that in this case the plaintiff is limited to the charge of negligence as above specified in this instruction, and no other acts or conduct of the defendant, its agents, servants or employees, either of commission or omission, are submitted to you for your consideration, and you must not consider any other-acts or conduct of the defendant, its agents or employees. If plaintiff has failed to prove to your satisfaction by the greater weight of the credible evidence in this ease, that she received her injuries by the negligence of defendant’s servants as alleged, then she must — 113 — fail in her action and yonr verdict must he returned in favor of the defendant.” This instruction, when analyzed, states three things, (1) the charges of plaintiff’s petition, (2) that no other acts or conduct upon the part of defendant’s servants would authorize a recovery, and (3) that if plaintiff failed by a preponderance of the proof to show that she received her injuries as alleged, she could not recover. To our mind this is a mere cautionary instruction, repeating to the jury plaintiff’s charge of negligence, and charging them that they could not consider any other acts of negligence, and that she must make out her case upon the negligence charged and not otherwise. In connection with number 4 given for defendant was number 5 for defendant, This instruction reads: “The defendant is not liable in tins case for any injury to plaintiff resulting from any cause or causes not specified in the foregoing instruction numbered 4 given for the defendant; and before the plaintiff can recover in this action, she must show with reasonable satisfaction to the jury, that the negligence specified in said instruction numbered 4 produced plaintiff’s injury; and if all the facts and circumstances given in evidence leave it to mere conjecture as to whether said alleged and specified negligence was the direct and proximate cause of plaintiff’s injury, then she must fail in this action,' and. your verdict must be for the defendant. ’ ’ Against the combined force of these two instructions the plaintiff urges that they prevented a recovery unless she had shown all three of the following facts: ‘ ‘ 1st, that the car was started while she was in the act of boarding the same; 2nd, that it was .started suddenly and rapidly; and 3rd, that respondent’s servants knew, or by' diligence could have known, that she was in the act of boarding.” — 114 — In the first place all of these things were in the petition. No attempt was made to amend the petition after the evidence was all in or upon the close of the plaintiff’s evidence. Plaintiff could have amended her petition so as to have forced the defendant to confine its statement of the contents of the petition to any limit that she desired. [Black v. Railroad, 217 Mo. 672.] This she did not do. Whilst these instructions state the substance of her petition, yet as said before they appear upon the question of negligence .rather to be for the purpose of keeping the jury from considering negligence other than that pleaded', than to force the jury to find every specific act pleaded. But going further, plaintiff’s instructions given contained the third objection above quoted, and under the peculiar language of the motion for new trial we have held them to be her instructions or instructions given at her instance. As to the second objection urged by the plaintiff in the quotation above, the plaintiff testified both ways upon the question of suddenness and rapidity. In one place she says: “Q. Well, then you stepped up with your right foot? A. Yes, sir. Yes, on to the step. “Q. And the car, you say, started suddenly and rapidly? A. It started. “Q. Well, you said suddenly and rapidly? A. Well, it started sudden enough to throw me off. No, I did not hear the overhead or safety stop above the motorman’s head blow out with a loud report. That did not happen. “Q. The car, in other words, just shot forward across, rapidly across the other crossings? A. I didn’t say it shot rapidly. “Q. Well, you plead it. The papers show it; that is your petition. A. I say it started rapidly enough to throw me off. ’ ’ Further she said when being pressed as to what she said in her deposition previously taken, that she — 115 — had therein stated that the ear started as usual and that such was the truth, hut she in this connection also adds: “Yes, sir, it usually starts rapidly enough to throw one. ’ ’ So that under the evidence, there is nothing specially wrong in the instructions criticised. "We hardly think these instructions harmed the plaintiff. Other complaints as to instructions have been examined, but are not such as to require notice. VI. As stated, there is but one objection to the failure of the court in admitting and rejecting evidence-From the evidence it appears that the aunt of the plaintiff went to the Metropolitan office to make a claim for the broken china. This was a week or ten days after the accident. She says that she then told them that plaintiff had hurt hex knee. Some time after this a claim agent took out a release to be signed by the plaintiff but she refused to sign it. The blank release was not offered, because counsel for defendant said they did not keep such papers. Plaintiff sought to prove the contents and the court excluded it, and we think properly so. It was an instrument prepared in the course of an attempt to compromise and settle a claim, and for that reason if no other, it was properly rejected. The jury heard the testimony of plaintiff. Her demeanor upon the stand was no doubt considered by them. The character of her alleged injury (tuberculosis of the knee) was described to them. They likewise could note that no complaint was made by plaintiff at the time, nor for a long time thereafter. Proof was quite strong that she was not a passenger at all, and never attempted to board a car at the time and place of the accident. The learned trial judge (now deceased) saw and heard these witnesses, as well as the plaintiff, and he saw fit to permit the verdict to stand. Our examination of the record does not convince us that there has — 116 — been sncb error as will authorize a reversal of this judgment, and we feel all the more satisfied in so saying, for we have examined even the questions that we were precluded from considering by reason of the defective motion for new trial. Let the judgment be affirmed. All concur.