Groshong v. United Railways Co.

GOODE, J. This appeal comes here from an order granting plaintiff a new trial after a verdict against her. The order said the new trial was allowed “on the ground that the court had erred ... in admitting — 724 — on behalf of defendant and over the objection of plaintiff, incompetent, immaterial and irrelevant evidence.” But we are more impressed by another error now assigned in support of the order. Counsel for plaintiff insists the court erred in ruling on instructions; and to pass on this proposition, the pleadings and evidence must be noticed. Plaintiff resided at No. 1637 Washington avenue, St. Louis, and about noon , of the day of the accident took an east-bound car on that avenue to go to the office of a physician at No. 1230 Olive street. When the car reached a point between Twelfth and Thirteenth streets, which run north and south, intersecting Washington avenue, she pushed an electric signal button notifying the conductor of her wish to alight at Twelfth street. In response to the signal the car came to a stop at the west crossing of Twelfth and Washington avenue. She testified she had ridden frequently on that line of cars, the cars always stopped at the west crossing of Twelfth street and she always got off there. On the day of the accident, as she was leaving the rear platform and while she had one foot on the step and was about to put the other on the street, still holding to a handrail, the car started, throwing her to the ground and injuring her. This is her story of the occurrence. The testimony for defendant tended to prove plaintiff attempted to get off the car while it was in motion; that no stop was made at the west crossing of Twelfth street and Washington avenue, but she attempted to alight while the car was crossing over Twelfth street, falling about one-third of the way from the tracks which ran north and south on Twelfth street and the west sidewalk of said street. That is to say, the car, when she stepped off, had not proceeded east on Washington avenue as far as the tracks which ran along Twelfth street and which it would have to cross, but had only traversed two-thirds of the distance of Twelfth street to those tracks. The evidence further tended to prove the cars never stopped at the west cross — 725 — ing of Twelfth street and Washington avenue, hut at the east crossing, and a city ordinance was introduced requiring east-hound cars on Washington avenue to stop to allow passengers to alight at the east crossing of any street and making it a misdemeanor for any motorman or conductor to violate the section. In the petition plaintiff alleged, among other things, that she signalled the men who were operating the car to stop “at the intersection of Twelfth street and Washington avenue, a regular stopping place for the discharge of passengers, for the purpose of alighting; and by reason of said signal, defendant’s servants and agents did stop said car at said streets and plaintiff did leave said car,” and while she was in the act of leaving it and before she had time to reach the pavement, the car was negligently started, etc. The court refused two instructions requested by plaintiff of the following import: If the jury found from the evidence plaintiff signalled defendant’s servants to stop on the west side or crossing of Twelfth street and Washington avenue for the purpose of allowing her to alight, and in response to said signal they did so, and while plaintiff was in the act of alighting, etc., the servants caused the car to start forward before she had a reasonable time to get off, and thereby threw her to the street and injured her, and the servants in charge of the car knew, or by the exercise of ordinary care could or would have known before starting, and in time to have averted the injury to plaintiff, that plaintiff Avas attempting to alight therefrom, and if she was exercising ordinary care at the time, she was entitled to recover. The second of the refused instructions was like the one just epitomized, except that it omitted to require the jury to find the crew* in charge of the car knew, or by ordinary care could or would have known before starting and in time to have averted the injury to plaintiff, that she was attempting to alight. This instruction, of which complaint is made, — 726 — was given at defendant’s request. That if the jury believed from the evidence the regular stopping place for the discharge of passengers from east-bound cars on Washington avenue was on the east side of Twelfth street, and there was no regular stopping place on the west side, it was the duty of plaintiff to wait until the car reached the east side of Twelfth street; and if the jury found the injuries she sustained were caused by her falling from the car while attempting to alight while it was in motion and before it reached the east side of Twelfth street, she was not entitled to recover. This appeal was argued on the assumption that the petition averred plaintiff signalled for the car to be stopped at the west side of the intersection of Twelfth street and Washington, “a regular stopping place for the discharge of passengers, and by reason of the signal .the car was stopped at said place.” On looking at the petition we find it does not aver the signal was given for a stop on the west side, or that said side was the regular stopping place; but only avers plaintiff signalled the servants operating the car to stop at the intersection of Twelfth streets and Washington avenue, “a regular stopping place for the discharge of passengers,” and the car was stopped there. That averment did not commit plaintiff to the theory that the west side of Twelfth street was the regular stopping place for the discharge of east-bound passengers, and did not require her to prove it was. In this respect the petition was like the one in Cobb v. Railroad, 149 Mo. 135. Therefore the refusal of the two instructions requested by her and the giving of the one requested by defendant of which complaint is made, cannot be justified on the ground the latter submitted the only case stated in the petition, and the former one not stated. But plaintiff testified the cars always stopped on the west side and she always got off there; and this circumstance, in connection with the fact that one of the instructions given at her request required the jury to find she sig — 727 — nailed for tlie car to stop “at the intersection of Twelfth street and Washington avenue, and in response to said signal said car did stop on the west side of Twelfth street to allow her to get off the car, and that said place was the regular stopping place for the discharge of passengers,” etc., is said to preclude a recovery unless the jury found the west side of Twelfth street was a regular stopping place for the discharge of passengers. The argument is that the west side was where passengers were always discharged; further, that she testified to ringing for a stop, and if the usual stopping place was the east side, the car must have stopped there, instead of on the west side; or, if it stopped on the west side the car crew had no reason to suppose she would attempt to get off there and hence defendant is not answerable for the starting of the car while she was getting off unless they knew she was. This reasoning is fallacious. The gist of plaintiff’s case was that the car was halted to let her alight in obedience to her signal, and was started carelessly while she was doing so. If these things were supported by evidence, she was entitled to have the jury pass on the weight of it, even though she vras in error about cars always stopping on the west crossing. If said car stopped on said crossing in response to her signal, as she testified, the inference is fair that the operatives in charge knew or should have known somebody intended to get off and should have been careful not to start until assured no person was in the act of alighting. [Cobb v. Railroad, 149 Mo. l. c. 145; Jones v. Traction Co., 118 S. W. 675.] The insertion in the first instruction given at her request of a requirement for the jury to find the west side was the regular stopping place, even if the language of the instruction fairly bears that interpretation, which is dubious, did not preclude her from having the case submitted to the jury in another instruction stating only facts essential to her recovery. An instruction requir — 728 — ing the jury to find one unnecessary fact was no obstacle to granting another which required them to find none but necessary facts. The first of the refused instructions requested by plaintiff should have been given; the second one was rightly refused, for it did not require the jury to find the car crew knew, or by even the highest care would have known plaintiff was alighting, in time to avoid hurting her. It should be said the first instruction as requested only bound defendant’s servants to use ordinary care, which is below the legal requirement. The order for new trial is affirmed and the cause remanded. All concur.