Jacobson v. St. Louis Transit Co. , 106 Mo. App. 339 ( 1904 )

REYBUBN, J.

(after stating the facts.) — 1. No complaint is made by defendant, nor any error assigned by it,, in the course of the trial, except to and in the instructions refused and given. The charge to the jury consisted of three instructions at instance of plaintiff, four at request of defendant, and one asked by defendant and given in modified form. The only instruction wholly refused was the imperative direction to find for defendant under the pleadings and all the evidence. The ruling of the trial court in rejecting the latter instruction, which appears to have been offered at close of all the evidence, is assailed upon the contention, if we apprehend the reasoning, that the single negligence averred, was, that while the car was at a standstill and plaintiff in the act of alighting therefrom, as defendant’s servants well knew, they carelessly and negligently started the car forward, and plaintiff Thereby was thrown and injured, and as plaintiff did not attempt to establish knowledge by the motorman that she was seeking to get off, such knowledge was necessarily restricted to the conductor, and in order to recover, the evidence must show that the conductor caused the car to move, and that the evidence alike for plaintiff and defendant, shows no act was done, and no signal given by the conductor until after the plaintiff’s injury had been sustained, and authorities are cited to maintain the well-recognized doctrine that the evidence must correspond with the allegations, and plaintiff can not state one cause of action and recover upon another. The testimony tended to prove that the conductor had attracted the attention of the plaintiff by announcing a stopping place was being approached, and thereby inviting the passengers to leave the car when it was stopped; the conductor was the representative of defendant, in control of the movements of the car, and the motorman looked to him for notice by proper signals or movements of the public seeking to become passengers, or, having been passengers, desiring to alight. Notice to the motorman by plaintiff, of her purpose to get off and of her desire to have the car stopped, would have been unusual, and notice to or knowledge of the conductor of such purpose imported knowledge of and notice to the motorman, and if actual notice by signal to tbe motorman was essential, it was the duty of the conductor to act. There was evidence introduced by plaintiff to the effect, that under the custom and practice of the defendant in the conduct of its cars, its conductors directed and regulated their movements, and when stopped for any purpose, the motorman started the car only after signal by the conductor. The evidence on behalf of plaintiff went to show that defendant, through its conductor, had knowledge that plaintiff was alighting, and through its motorman started the car; if any signal was necessary to apprise the motorman to hold the car motionless, sufficiently long for plaintiff to get off in safety, it was the plain duty of the conductor to give such signal, and he was remiss in failing so to do. If plaintiff’s narrative of the event, as well as testimony of other witnesses on her behalf, was entitled to credit, there was substantial evidence tending to establish negligence in the servants of defendant, and the issue was properly for the jury and the court committed no error in declining defendant’s instruction directing a verdict in its favor.

2. These instructions, together with an instruction submitted by defendant, but modified by the court, together with defendant’s series of instructions given, constitute unitedly a charge to the jury presenting the issues in clear and correct manner, except in the regard presently designated. The defendant’s measure of duty to plaintiff, if the latter was endeavoring to leave the car with knowledge of defendant’s agent or representative, even if stopped at a point not a usual stopping place where passengers were in the habit of getting off, has been clearly defined by text-writers and decisions of this and sister States. An eminent authority has enunciated that a momentary stop, at a place at which passengers are not accustomed to alight, for the purpose of taking a signal for crossing another track, is not an invitation to a passenger to get off at such point; and the carrier is not negligent, unless the person in charge of the car knew that the passenger intended to alight or had reason to suspect it. Nellis, Street Surface Railroads, p. 484.

In Jackson v. Railway, 118 Mo. 199, the Supreme Court approved an instruction that if the common carrier had stopped its car for any reason, if the fact was known to the conductor, that plaintiff, a passenger, was in the act of alighting, or desired to alight, it was the duty of the carrier to give such passenger a reasonable opportunity to alight before starting the car.

In Chicago, etc., v. Mills, 105 Ill. 63, a case relied on in the foregoing decision, the judge, announcing the conclusion of the court, adopts the following language: “It was of no consequence whether the car was stopped at instance of plaintiff or not, since the act of stopping was productive of no injury, and is in no respect complained of. It is sufficient while the car was stopped, parties were getting off, and the plaintiff, while attempting also so to do, with due care, was injured by reason of the negligent starting of the car by the.defendant’s servant.”

The final instruction for plaintiff was as follows:

“5. And in connection with instruction No. 2, heretofore given on behalf of the plaintiff, the court further instructs the jury that although you may believe and find from the evidence that the plaintiff was guilty of negligence in attempting to alight from the car at a place which was not a street crossing or regular place for the discharge of passengers by defendant, or by alighting from the car after she had been warned by the conductor not to do so or to ‘wait a minute;’ yet, if you further believe and find from the evidence that the agents and servants of the defendant in charge of said car saw and knew that the plaintiff was in the act of alighting therefrom and suddenly started the ear forward and thereby directly caused her to be thrown to the ground and to receive the injuries complained of; and if you further believe that the starting of said car under such circumstances was negligent and showed a reckless and willful disregard of plaintiff’s safety, then your verdict-will be for the plaintiff, notwithstanding such alleged negligence on the part of plaintiff. ’ ’

The statements of plaintiff’s cause of action was wholly silent as to any deliberate disregard of plaintiff’s safety, but the fault therein imputed to defendant was the wrongful act of defendant’s agents and servants, while plaintiff was in the act of alighting from the car of which they were fully aware, and before a reasonable time was afforded her to safely alight, in carelessly and negligently causing the car to move and start forward suddenly.

In Raming v. Railway, 157 Mo. 477, the Supreme Court in a decision, which, in this respect was without dissent, pointed out the clear distinction between negligence and wanton acts, and sustained by weight of authority, declared the question of negligence could not arise where the act complained of was intentional, that negligent and deliberate injuries could not coexist.'

The present instruction, in the concluding paragraph, exacts that the jury should believe that the starting of the car under circumstances previously mentioned was negligent, and showed a reckless and willful disregard of the safety of plaintiff, thus injecting an element ■foreign to the issues, to the pleadings and to the proof, and inconsistent with the instructions declaratory of contributive negligence, for if the act, the basis of an action, be willful injury, the contributory fault of the sufferer is no defense to the wrongdoer. Raming v. Railway, supra, l. c. 507, and authorities cited therein. The interposing of such feature repugnant alike to the theory relied on by the plaintiff in her petition, and to the trial evidence, as well as to the rules of law expressed in other instructions, for the consideration of the jury could not have failed to confuse and perplex the deliberation upon the verdict to the prejudice of defendant. The judgment is therefore reversed and the cause remanded.

Bland, P. J, and Goode, J., concur.