Leu v. St. Louis Transit Co. , 106 Mo. App. 329 ( 1904 )

REYBURN, J.

(after stating the facts.) — 1. The trial court committed no error in declining the imperative instructions prayed, that upon the pleadings and the testimony, the plaintiff was not entitled to recover and the verdict must be for the defendant. Whatever may be the law prevailing in other jurisdictions, at the present time the rule is well settled in this State, that it is not negligence per se for a party to attempt to board or alight from a street car moving at a slow rate of speed, and the question of such contributory negligence, if any was here displayed, in attempting to get upon the car under the conditions established, was properly submitted to the jury. This proposition has been announced with, vigor and clearness in a recent case in the Supreme Curt from the decision of which, the following is extracted:

“Whatever may be said as to a variance between the allegata and the probata in that case, certain it is that, aside from the petition,the plaintiff’s evidence and instructions brought it within the principles which this court has recognized, namely; that it is not negligence per se for a passenger to attempt to board a car or alight from it while it is moving slowly; that whether under the circumstances of the given case, it is negligence so to do, is a question for the jury; and that if, while the passenger is attempting to alight [there, here to board], when the car is moving so slowly that he can not be deemed guilty of negligence in. so attempting, the motion of the car is suddenly so increased as to cause him to fall, the carrier is liable.” Peck v. St. Louis Transit Co., 77 S. W. 736.

To the cases cited may be added numerous recognitions of the rule by this court. Maguire v. St. Louis Transit Co., 103 Mo. App. 459; O’Meara v. St. Louis Transit Co., 102 Mo. App. 202; Eikenberry v. St. Louis Transit Co., 103 Mo. App. 442.

The fact that the car was proceeding to the shed and was not carrying passengers was not shown to he known to plaintiff, and the mere reversing of the street name on top of the forward end of the car did not necessarily import snch knowledge to him, and it was left to the jury under most liberal instructions to determine whether plaintiff saw, or by the exercise of due care on his part could have seen the indications, either by motorman or conductor, that the car was on its way to the sheds and not carrying passengers and in event of such finding that plaintiff was debarred from recovery.

2. The court gave, among others, the following instruction at plaintiff’s instance:

“The court instructs the jury that although the jury should believe from the evidence that plaintiff was negligent or careless in attempting to get upon a car while it was moving, yet if they further believe from the evidence that the conductor in charge of defendant’s car saw plaintiff in the act of attempting to board the moving car in time so' that by exercising ordinary care he could have prevented plaintiff from attempting to get upon said car or could have stopped said ear after plaintiff attempted to get upon it in time to have averted the injuries complained of without damage to the car or those upon it and that he did not attempt to stop said car or to prevent plaintiff from boarding it under the said circumstances then you will find for the plaintiff. ’ ’

This portion of the charge is defended by respondent by invoking the case of Fulks v. Railroad, 111 Mo. l. c. 340, as authority; the general doctrine of that case is justly recognized and respected by this tribunal, namely, that the question of contributory negligence consisting in an attempt to get on or off a moving car while the train is in motion was a mixed question of law and fact to be determined by the jury guided by proper instructions in the light of the attending circumstances; while the case appealed to involved a train moved by steam, the rule is applicable to street cars operated by electric motive power. The terms of the instruction, however, can not he justified by application of such principle, for it transcends, in the duty imposed, the sweep of above rule, and exacts from the conductor the obligation of averting the casualty by preventing the respondent from attempting to board the moving car if he saw plaintiff in time, while engaged in such effort, which section of the instruction is without support in the evidence, not made an issue by the pleadings, and even if properly presented under the pleadings and the evidence, was beyond the legal duty of defendant’s employees in charge of the ear.

3. In view of the disposition of this case necessitated by the fatal error pointed out in the instruction above quoted, the insistence of appellant that plaintiff’s counsel flagrantly overstepped the freedom of speech to be accorded in summing up at close of the evidence and before submission of the case to the jury, demands no lengthy analysis or decision, as, if language inappropriate was unpremeditatedly employed in the ardor and zeal of the advocate, such method of argument so frequently condemned is not likely to be repeated in any future trial of the case. The recent expression of the Supreme Court otherwise might aptly have been applied. “It was the plain duty of the court upon the objection of appellants, to have expressed its disapproval of the objectionable remarks of counsel, in the presence of the jury, in such sufficiently emphatic language as to destroy any impressions which may have resulted from the use of them. Its silence and failure to do so in my opinion was error which should result in the reversal of the judgment and remanding the cause for a new trial.” Rice v. Sally, 176 Mo. l. c. 148.

Judgment reversed and cause remanded.

Bland, P. Jand Goode, J., concur.