Tillman v. St. Louis Transit Co.

REYBURN, J. (after stating tbe facts as above).— 1. Appellant presents as the first error exhibited by tbe record, that there was a substantial variance, that the proof failed to respond to tbe allegations of tbe petition, but was a departure therefrom; that tbe charge was that tbe car lurched forward, throwing plaintiff off tbe car and upon and against a post or upright standard placed near tbe track of tbe defendant,- while tbe evidence of plaintiff established conclusively that tbe post-knocked him from tbe footboard. As tbe case will be reversed and remanded for a new trial for a more conspicuous and patent error committed at tbe trial, it is not deemed necessary to give lengthy consideration to this contention, but it is sufficient to suggest that prior to a retrial tbe petition may be bettered and made clearer by amendment. 2. Tbe second instruction charged as. follows: “The court instructs tbe jury that a common carrier of' persons, such as a street ear corporation, is bound to use tbe highest degree of care for the safety of its passengers and for persons attempting to become passengers on their cars.” We are not impressed with tbe argument on behalf of appellant that this devolved upon defendant to exercise “tbe utmost care and foresight of which tbe human mind could conceive,” but in our judgment, it only announced tbe proposition well established, especially by tbe decisions of tbe highest tribunal of this State, that in tbe performance of its duties as a common carrier of passengers, tbe defendant was obliged to use that degree of care which a very prudent man would adopt in tbe performance of such duties with tbe like means of transportation. In Leslie v. Railway, 88 Mo. 50, tbe instruction as [558] sailed embodied the language herein criticised and was held not objectionable, but approved. See also Sharp v. Railway, 114 Mo. 94, and Powers v. Railway, 60 Mo. App. 481, sanctioning the definition of the degree of care imposed, interpreted in even more vigorous terms. See also Fillingham v. Transit Company, 102 Mo. App. 573, decided at this term by this court, where this proposition is ably discussed and the authorities reviewed at length. 3. The defendant asked the trial court to embrace the following in its charge to the jury: “If, from the evidence, the jury believe that both the plaintiff, and the servant of defendant operating its car were equally guilty of negligence, which directly contributed to the accident and the injury complained of, then your verdict should be for defendant. ’ ’ The probative force and weight of the testimony introduced by defendant, tending to show that plaintiff’s injuries were contributed to directly by his own conduct, was for the decision of the jury; but there was evidence of such contributory negligence on his part, which entitled the defendant to have this issue submitted to the consideration of the jury, and its refusal constituted error requiring a reversal. Hogan v. Railway, 150 Mo. 36; Hornstein v. Railway, 97 Mo. App. 271. 4. Instruction indicated as number eight, defining the measure of plaintiff’s recovery, is manifestly the consequence of clerical errors and in the disposition made of the case, deserves no further attention. The judgment is therefore reversed and the cause remanded for a new trial. Blcmd, P. J., and Goode, J concur.