McDonald v. Kansas City Cable Railway Co. ( 1888 )

Ellison, J.

— Plaintiffs are husband and wife, and claim that one of them, the wife, was a passenger on defendant’s cable street railway on April 5, 1886, and that while alighting therefrom, at the northwest corner of Ninth and Jefferson streets, in Kansas City, Mo., the car from which she was descending was started suddenly and threw her to the ground, breaking her arm at the wrist, and for this, and medicines and medical attendance rendered necessary thereby, they obtained a verdict for two thousand dollars.

It was claimed by plaintiffs that Olive MacDonald, the passenger, notified defendant’s conductor that she desired to' alight at the place named, and that the car was stopped for that purpose. Defendant claimed that no notice was given of Olive MacDonald’s desire to stop ; that the train was stopped at the point named for a moment for another reason, and that after it started, the plaintiff Olive MacDonald arose from the seat, rang the bell, and jumped off the car while it was in motion and after it had passed the crossing.

The evidence tended to sustain the claim of each party. It is not disputed that the cars were stopped at Jefferson street, nor is it disputed that that point was where plaintiff Olive “desired to get off.” The dispute was whether defendant’s conductor knew of her desire to get off and stopped for that purpose.

Under such state of the evidence, the court gave for plaintiffs, over defendant’s objection, the following instruction, “that if they believe from the evidence in this case that plaintiff Olive MacDonald was a passenger on one of defendant’s cars on April 5, last past, that she paid her fare, that the cars were stopped at Jefferson street in Kansas City, Mo., where she desired to get off, that she attempted to alight from said cars using ordinary diligence for that purpose, but before she had time to alight the cars were started forward and threw her to the ground and injured her, and that without any contributory negligence on her part, they will find for the plaintiff.”

This instruction entirely ignores the material issue, whether defendant’s agent was notified or knew of plaintiff’s desire to leave the car at that point, and for this reason it is erroneous. Henry v. Bassett, 75 Mo. 89; Grier v. Parker, 85 Mo. 107; Brown v. McCormick, 23 Mo. App. 181; Russell v. Railroad, 26 Mo. App. 368.

I will add, that though defendant’s servants may not have been notified by plaintiff to stop at Jefferson street, and though the stop was made at that point to see if the track was clear at the foot of the “incline,” yet, if before starting, plaintiff made known her intention of getting off and defendant negligently started up, thereby throwing her to the ground, as she was in the act of alighting, it would be liable, in the' absence of negligence on part of plaintiff

The judgment will be reversed and the cause remanded.

All concur.