BLAND, P. J.
(after stating the facts). — Error is assigned in the giving of plaintiff’s instructions, and also in the refusal of certain instructions asked by the defendant. Plaintiff’s instructions are as follows:
“1. The court instructs the jury that a common carrier of persons, such as a street railway company, carrying passengers for profit, is bound to exercise a high degree of care for the safety of its passengers, that is, such care as a very prudent person would exercise under similar circumstances.
“2. The court instructs the jury that if you find and believe from the evidence that the plaintiff in this action was a passenger on one of the cars owned and operated by the defendants on the first day of November, 1903, and that the car upon which the plaintiff was a passenger stopped at a usual stopping place established by defendants where by custom it was a practice for passengers to leave the car, at or near the intersection of Natural Bridge road with Grand avenue of the city of St. Louis, State of Missouri, and. that while the car was so stopped plaintiff attempted to alight therefrom, and that while plaintiff was leaving the said car and before he had time to safely leave it, the said car, on account of negligence of the agent of the defendants in charge thereof started suddenly forward causing plaintiff to be thrown to the street whereby he was injured, and that plaintiff was at the time exercising ordinary [667]*667care for Ills own safety, then you should find in favor of the plaintiff and against the defendants.
“3. The court instructs the jury that after a street car has once stopped at a usual stopping place where passengers leave the cars, it is then the duty of the agents in charge thereof to exercise a high degree of care to prevent the starting of the car while any passenger or passengers are attempting to alight therefrom. And if the jury believe from the evidence that the plaintiff was a passenger on a car operated by the defendant, and that the car stopped on Grand avenue in the city •of St. Louis at a usual stopping place, and that while plaintiff was attempting to alight therefrom the agent or agents of the said defendants in charge of its said car failed to exercise a. high degree of care to-prevent the starting of the car while the plaintiff was. in the act of alighting therefrom and the failure, if the jury so find, to exercise said high degree of care caused plaintiff to be injured, and that plaintiff was in the exercise of ordinary care, then the jury should find for the plaintiff and against the defendants.
“4. If under the evidence and the instructions the jury find in favor of the plaintiff, you will assess his damages at such sum as you believe from the evidence will fairly compensate plaintiff for such injuries, if any, as you find from the evidence he sustained at the time •of the accident mentioned in the evidence, and in assessing the damages of the plaintiff, if the jury find in his favor, you will take into consideration the nature and character of the injuries, if any, sustained by the plaintiff at the said time, the pain and suffering and mental anguish plaintiff has endured, if any, as a direct result of his injuries sustained at the time of the' accident; the pain of body and mental anguish you believe from the evidence plaintiff will suffer in the future as a direct result of the injuries, if any, sustained at the time of the accident; the reasonable valuation of the loss of ■time, if any, which the jury believe from the evidence [668]*668plaintiff: has been compelled to lose from his occupation as a direct result of the injuries sustained at the said time; the reasonable valuation of the loss of time, if any, the jury believe from the evidence plaintiff will be compelled to lose in the future as a direct result of his injuries sustained at the time of the accident; and the reasonable valuation of the medical service, if any, necessarily rendered the plaintiff as a direct result of the injuries sustained at the time of the accident, which you believe that the plaintiff is legally hound to pay.”
The first instruction given for plaintiff properly declared the degree of care a carrier of passengers is required to exercise for their safety. [Lemon v. Chandler, 68 Mo. 340; Furnish v. Railway, 102 Mo. 438, 13 S. W. 1044; O’Connell v. Railway, 106 Mo. 482, 17 S. W. 494; Clark v. Railroad, 127 Mo. 197, 29 S. W. 1013; Magrane v. Railway, 183 Mo. 119, 81 S. W. 1158; Posch v. Railroad, 76 Mo. App. 601; Chouquette v. Railway, 80 Mo. App. 515; Muth, Exr., v. Railway, 87 Mo. App. 422; Young v. Railway, 93 Mo. App. 267; Tillman v. St. Louis Transit Co., 102 Mo. App. 553, 77 S. W. 320; Robinson v. Railway, 103 Mo. App. 110; 77 S. W. 493.] And the rule applies as well to street as to steam railroads. [Willmott v. Railway, 106 Mo. 535, 17 S. W. 490; Jackson v. Railroad, 118 Mo. 199, 24 S. W. 192; Sweeney v. Railway, 150 Mo. 385, 51 S. W. 682; Buck v. Railway, etc., 46 Mo. App. 555; Powers v. Railway, 60 Mo. App. 481; Parker v. Railway, 69 Mo. App. 54; Freeman v. Railway, 95 Mo. App. 94, 68 S. W. 1060; Heyde v. St. Louis Transit Co., 102 Mo. App. 537, 77 S. W. 127.]
Plaintiff’s second and third instructions are grounded on the theory, that notwithstanding the city ordinance required cars running north to stop on the north side of intersecting or cross streets, yet if it was and had been the custom of the defendant’s servants operating cars on Grand avenue, to stop cars traveling north at the switch to receive and discharge passengers, and the car [669]*669on which plaintiff was traveling Avas stopped at that point, and plaintiff, using ordinary care, undertook to alight, and the car was started before he could get off, causing him to fall upon the street, and injury resulted, the defendant was liable.
In McCarty v. Railroad, 105 Mo. App. 1. c. 601, 80 S. W. 7, this court, through Goode, J., said: “If there was a usage to take passengers at the switch, the carmen would have been bound to Avatch and be as careful about starting there as at far-crossings, the common and appropriate localities for taking passage; for then persons would have the right to board cars and the operatives good reason to expect them to do so. [Washington, etc., Railroad v. Grant, 11 App. Cas. (D. C.) 107; McNulta v. Euch, 134 Ill. 46; West Chicago St. Ry. v. Manning, 170 Ill. 417; Id., 70 Ill. App. 239.]”
The instructions are in harmony Avith the doctrine of the McCarty case and are approved.
The court gave the following instructions for the defendants:
“3. If you find from the evidence that the plaintiff stepped from or left the car Avhile the same was in motion, even though the said motion may have been slight, and as a result he Avas throAvn and injured, your verdict will be for the defendants.
“7. The court instructs the jury that the opinions of expert witnesses are admissible in evidence, and are to be given such Aveight and value as the jury may think right and proper under the circumstances. The value of an expert opinion depends not only upon the qualifications and experience of the witness, but the facts Avhich he takes into consideration and upon Avhich he bases his opinion. If the facts assumed, and Avhich are made the basis of the opinion, are not true and are not established by the proof, then the opinion has no basis upon which to rest, and would be of no value, and in weighing such opinions, the jury must look to see whether the facts assumed by the expert witness are established by the [670]
Free access — add to your briefcase to read the full text and ask questions with AI
BLAND, P. J.
(after stating the facts). — Error is assigned in the giving of plaintiff’s instructions, and also in the refusal of certain instructions asked by the defendant. Plaintiff’s instructions are as follows:
“1. The court instructs the jury that a common carrier of persons, such as a street railway company, carrying passengers for profit, is bound to exercise a high degree of care for the safety of its passengers, that is, such care as a very prudent person would exercise under similar circumstances.
“2. The court instructs the jury that if you find and believe from the evidence that the plaintiff in this action was a passenger on one of the cars owned and operated by the defendants on the first day of November, 1903, and that the car upon which the plaintiff was a passenger stopped at a usual stopping place established by defendants where by custom it was a practice for passengers to leave the car, at or near the intersection of Natural Bridge road with Grand avenue of the city of St. Louis, State of Missouri, and. that while the car was so stopped plaintiff attempted to alight therefrom, and that while plaintiff was leaving the said car and before he had time to safely leave it, the said car, on account of negligence of the agent of the defendants in charge thereof started suddenly forward causing plaintiff to be thrown to the street whereby he was injured, and that plaintiff was at the time exercising ordinary [667]*667care for Ills own safety, then you should find in favor of the plaintiff and against the defendants.
“3. The court instructs the jury that after a street car has once stopped at a usual stopping place where passengers leave the cars, it is then the duty of the agents in charge thereof to exercise a high degree of care to prevent the starting of the car while any passenger or passengers are attempting to alight therefrom. And if the jury believe from the evidence that the plaintiff was a passenger on a car operated by the defendant, and that the car stopped on Grand avenue in the city •of St. Louis at a usual stopping place, and that while plaintiff was attempting to alight therefrom the agent or agents of the said defendants in charge of its said car failed to exercise a. high degree of care to-prevent the starting of the car while the plaintiff was. in the act of alighting therefrom and the failure, if the jury so find, to exercise said high degree of care caused plaintiff to be injured, and that plaintiff was in the exercise of ordinary care, then the jury should find for the plaintiff and against the defendants.
“4. If under the evidence and the instructions the jury find in favor of the plaintiff, you will assess his damages at such sum as you believe from the evidence will fairly compensate plaintiff for such injuries, if any, as you find from the evidence he sustained at the time •of the accident mentioned in the evidence, and in assessing the damages of the plaintiff, if the jury find in his favor, you will take into consideration the nature and character of the injuries, if any, sustained by the plaintiff at the said time, the pain and suffering and mental anguish plaintiff has endured, if any, as a direct result of his injuries sustained at the time of the' accident; the pain of body and mental anguish you believe from the evidence plaintiff will suffer in the future as a direct result of the injuries, if any, sustained at the time of the accident; the reasonable valuation of the loss of ■time, if any, which the jury believe from the evidence [668]*668plaintiff: has been compelled to lose from his occupation as a direct result of the injuries sustained at the said time; the reasonable valuation of the loss of time, if any, the jury believe from the evidence plaintiff will be compelled to lose in the future as a direct result of his injuries sustained at the time of the accident; and the reasonable valuation of the medical service, if any, necessarily rendered the plaintiff as a direct result of the injuries sustained at the time of the accident, which you believe that the plaintiff is legally hound to pay.”
The first instruction given for plaintiff properly declared the degree of care a carrier of passengers is required to exercise for their safety. [Lemon v. Chandler, 68 Mo. 340; Furnish v. Railway, 102 Mo. 438, 13 S. W. 1044; O’Connell v. Railway, 106 Mo. 482, 17 S. W. 494; Clark v. Railroad, 127 Mo. 197, 29 S. W. 1013; Magrane v. Railway, 183 Mo. 119, 81 S. W. 1158; Posch v. Railroad, 76 Mo. App. 601; Chouquette v. Railway, 80 Mo. App. 515; Muth, Exr., v. Railway, 87 Mo. App. 422; Young v. Railway, 93 Mo. App. 267; Tillman v. St. Louis Transit Co., 102 Mo. App. 553, 77 S. W. 320; Robinson v. Railway, 103 Mo. App. 110; 77 S. W. 493.] And the rule applies as well to street as to steam railroads. [Willmott v. Railway, 106 Mo. 535, 17 S. W. 490; Jackson v. Railroad, 118 Mo. 199, 24 S. W. 192; Sweeney v. Railway, 150 Mo. 385, 51 S. W. 682; Buck v. Railway, etc., 46 Mo. App. 555; Powers v. Railway, 60 Mo. App. 481; Parker v. Railway, 69 Mo. App. 54; Freeman v. Railway, 95 Mo. App. 94, 68 S. W. 1060; Heyde v. St. Louis Transit Co., 102 Mo. App. 537, 77 S. W. 127.]
Plaintiff’s second and third instructions are grounded on the theory, that notwithstanding the city ordinance required cars running north to stop on the north side of intersecting or cross streets, yet if it was and had been the custom of the defendant’s servants operating cars on Grand avenue, to stop cars traveling north at the switch to receive and discharge passengers, and the car [669]*669on which plaintiff was traveling Avas stopped at that point, and plaintiff, using ordinary care, undertook to alight, and the car was started before he could get off, causing him to fall upon the street, and injury resulted, the defendant was liable.
In McCarty v. Railroad, 105 Mo. App. 1. c. 601, 80 S. W. 7, this court, through Goode, J., said: “If there was a usage to take passengers at the switch, the carmen would have been bound to Avatch and be as careful about starting there as at far-crossings, the common and appropriate localities for taking passage; for then persons would have the right to board cars and the operatives good reason to expect them to do so. [Washington, etc., Railroad v. Grant, 11 App. Cas. (D. C.) 107; McNulta v. Euch, 134 Ill. 46; West Chicago St. Ry. v. Manning, 170 Ill. 417; Id., 70 Ill. App. 239.]”
The instructions are in harmony Avith the doctrine of the McCarty case and are approved.
The court gave the following instructions for the defendants:
“3. If you find from the evidence that the plaintiff stepped from or left the car Avhile the same was in motion, even though the said motion may have been slight, and as a result he Avas throAvn and injured, your verdict will be for the defendants.
“7. The court instructs the jury that the opinions of expert witnesses are admissible in evidence, and are to be given such Aveight and value as the jury may think right and proper under the circumstances. The value of an expert opinion depends not only upon the qualifications and experience of the witness, but the facts Avhich he takes into consideration and upon Avhich he bases his opinion. If the facts assumed, and Avhich are made the basis of the opinion, are not true and are not established by the proof, then the opinion has no basis upon which to rest, and would be of no value, and in weighing such opinions, the jury must look to see whether the facts assumed by the expert witness are established by the [670]*670proof or not, and you cannot take the facts assumed by the expert Ayitness to be true simply because they were' so assumed, but you must look to the proof to determine Avhether they are proved or not.
“8. If you find from the evidence that the purpose of stopping the car or cars of the defendant on the south side of Natural Bridge road at its intersection Avith Grand avenue was (only) to permit or enable the motorman to throw the switch in order that his car might proceed north or west as desired, and that while said car was stopped and the motorman was engaged in throwing the switch persons got upon or got off the car, this does not establish such a custom and practice, and does not impose any duty upon the defendant to stop the car on which the plaintiff was a passenger at said point for the purpose of allowing him to alight; and if you find from the evidence that the car Avas either stopped or sloAved down and. continuing in motion, however slight, upon the occasion when the plaintiff was a passenger (only) for the purpose of enabling the motorman to throw the switch that his car might proceed north, and that the plaintiff attempted to alight from said car, either while the car was standing still south of Natural Bridge road, or moving sloAvly, and Avas thereby throAvn to the ground and injured, plaintiff is not entitled to recover and your verdict will be for the defendants.
“12. The burden of proof is on the plaintiff to show by the preponderance of the evidence that defendant’s car came to a stop at place of the accident — that while plaintiff was in the act of alighting the car was sudenly moved forward without notice to plaintiff and plaintiff was throAvn to the street and injured, and then plaintiff is not entitled to recover unless he has shown by the preponderance or greater weight of the evidence that defendant transit company had established by custom and practice a stopping place for passengers to alight at the place Avhere the car stopped or slowed down south of the SAvitch. And unless plaintiff has so shown [671]*671by the preponderance of the evidence all the foregoing facts you will find for defendants.”
These instructions presented the theory of the defense fully and were favorable to the defendant, hence it has no ground to complain that error was committed in refusing other instructions asked by it.
The judgment is affirmed.
All concur.