Vaughan v. Springfield Traction Co. ( 1909 )

REYNOLDS, P. J.

(after stating the facts). — It is claimed hy the learned counsel for defendant, that on the evidence adduced by plaintiff and on the whole evidence, the verdict should have been directed for defendant, it being claimed that the pleadings tendered issues different from the issues raised by the evidence adduced on behalf of plaintiff, and the evidence of the physical conditions shows that it was impossible for the alleged accident to have occurred as detailed by plaintiff and her witnesses; and it was further assigned as ground for reversal that, taken as a whole, the evidence conclusively shows that the accident occurred, not at a regular stopping place or at a place where the stop was made in obedience to a signal, but occurred either when a stop was made at a switch or at the main tracks at Main street. Complaint is hence made that the instructions do not fairly and specifically present the defense interposed founded on that theory; that the duty of the defendant where a passenger attempts to alight at a regular stopping place or at a place where a stop is made in obedience to a signal, is quite distinct from the duty arising when passengers attempt to alight merely because a stop is made in obedience to a regulation prescribed by law, and that defendant was entitled to have this pointed out by a .clear-cut declaration of law; that the instruction given by the court is too general and the more specific one asked by defendant should have been given and that defendant was entitled to have that given as a converse proposition to that declared in plaintiff’s instruction. The point is also made “that although there was an apparent conflict in the evidence such as would prevent the court declaring a variance between pleading and proof, yet the question should have been submitted to the jury that plaintiff cannot declare that the car stopped at a regular crossing in obedience to a signal and recover on the theory or proof that it stopped not at a regular crossing and not in obedience to a signal, but at least one hundred and fifty feet from a crossing and at a switch where the law compelled the car to stop and compelled the conductor to leave the car and the care of his passengers to go ahead and flag. These are the principal points argued, it being finally urged that under all the evidence the verdict should not only have been for defendant, but that there is no substantial evidence to sustain the finding for plaintiff.

Counsel for defendant have cited quite a number of cases in support of their contention, but on a review of the testimony in the case and the instructions given by the court, we are of the opinion that while it would not have been improper to have given the instructions asked for by the defendant, the court has fully and fairly covered all the propositions involved in the case with sufficient accuracy and with sufficient regard to the evidence in the case to fairly and intelligently present to the jury the issues involved. While it would not have been improper to have given either of the instructions the refusal to give which is specially complained of, we do not think that the refusal to do so is reversible error. The propositions involved in them— save as to the warning against prejudice against a corporation defendant, are fairly covered by the instructions given. The evidence, on nearly every material fact was contradictory. It was a case calling for the decision of the jury. They are not only the triers but determinators of the facts. Finding no material error and believing from the evidence in the case that the verdict is for the right party, and satisfied that if she is entitled to recover at all, the amount awarded plaintiff is a very modest one, entirely disposing of any idea that the jury was governed by prejudice or passion, we affirm the judgment of the circuit court.

All concur.