Hutchinson v. Reliance Realty Co.

GOODE, J. The instruction copied in the statement presented a false hypothesis to the jury as a basis for plaintiff’s recovery. There is no substantial testimony tending to prove that while the plaintiff was in the act of getting upon the elevator and before she had reasonable time to do so, “defendant’s servant in charge caused or suffered said elevator to be started up and caused the plaintiff to be pushed or fall from th& floor of said elevator” into the shaft. That was the theory propounded to the jury and it contradicts the evidence of both sides. The cunning workmanship of the petition, which either carelessly or carefully refrained from an explicit statement as to how plaintiff was pushed away, might possibly have authorized the framing of such a charge, if evidence had been adduced to support it, but there was none. The plaintiff’s version of the casualty unmistakably shows a wilful repulsion of her person from the cage by the operator’s pushing her back with his hand. It is impossible by fair intendment or interpretation to collect from her testimony the inference that she was caused to be pushed or to fall by the elevator starting prematurely while she was in the act of stepping inside. On the other hand, the narratives of the other witnesses, if true, conclusively establish that she was hurt solely by her own fault. No hypothesis, except those two, that she was pushed off by the servant operating the machine or that she tried to board it after it started with its doors nearly closed and was knocked off while clinging to it in its upward ascent, could properly be submitted. The above instructions are misleading, without supporting evidence, and should have been refused. Instructions suggesting theories of a case not supported by any [620] evidence should be refused. Boose v. Thomas, 7 Mo. App. 590; Bean v. Railway Co., 20 Mo. App. 641; Cottrell v. Spiess, 23 Mo. App. 35; State v. Wilforth, 74 Mo. 528; Chouteau v. Searcy, 8 Mo. 723; Benjamin v. Railway Co., 50 Mo. App. 602; Williams v. Railway Co., 96 Mo. 275; Sartin v. Saling, 21 Mo. 387; Jones v. Grossman, 59 Mo. App. 195; Griffith, Admr., v. Railway, 2 Iowa 645; Trapnell v. City, 76 Iowa 744. Appellant complains of the refusal of the following instruction requested by it: “The court instructs the jury that if you find from the evidence that on the occasion in question, when the elevator on its upward trip reached the seventh floor and stopped for the reception of passengers, plaintiff had her back turned to the elevator and was engaged in conversation with someone on the floor, and failed to notify the operator of the elevator, or indicate to him in any way her desire to board the elevator until after it had again started upward, and that she thereafter attempted to climb on to the elevator by catching and holding on to the garment of the passengers, then no recovery can be had in this case, and your verdict should be for the defendant.” Another instruction of similar import was given, which warranted the court in rejecting a duplicate. Sufficient evidence was introduced tending to prove plaintiff’s uterine trouble was brought on by the accident, to leave the question of whether it was or not to the jury. It was specially pleaded. Her physician testified to treating her for it a month or less after the injury, that she had never complained of it before, and was apparently healthy; she swore it followed the hurt in a week or two and that she had never experienced it before. The physician also said such shocks might cause the disease, but that frequent pregnancies more often caused it. Plaintiff is a young married woman and had never borne but one child; so that cause is excluded and no [621] other probable or possible one but the injury was shown. The evidence leaned heavily to the theory that the plaintiff was hurt by her own desperate carelessness in precipitately catching the elevator cage when the doors were almost shut and the car ascending. We would not hastily overrule the exception that the verdict was induced by passion or prejudice in the absence of other just ground for complaint. As it is, the judgment is reversed and the cause remanded because of the giving of the erroneous instruction. All concur.