Robinson, J. —
This is a suit brought by plaintiff to recover $5,000 damages for injuries alleged to have been received at one of the defendant’s stations on the St. Charles rock road, in the city of St. Louis, on August 9, 1892. Defendant' is a street railroad company operating its line by electric power.
“Plaintiff’s petition states that as he was about to board one of the trains on defendant’s road for the purpose of being transported as a passenger from its station, and while he was in the act of getting on said train at its platform, but before he had done so, the said train, owing to the negligence and carelessness of the employees or servants of defendant in charge thereof, was suddenly started, and he was thereby thrown vio[69]*69lently down upon the platform and dragged thereon, and that he was thereby greatly bruised and severely injured both internally and.in his limbs.”
The answer was a general denial, coupled with a plea of contributory negligence, and followed by the usual replication. There- was a trial by jury and verdict for defendant. Mnny errors are assigned by appellant; but it is only necessary to notice a few of them in order to show the result we have reached.
'The testimony in brief shows: That plaintiff lives at Wellston, on the south side of the old St. Charles road, about seventy-three steps west of defendant’s track; that his house stands back ten or fifteen feet from the street; that on the morning in question, between 6 and 7 o’clock, he started from his home down town to work; that when he reached the platform he saw a car coming, waved his hand at the motorman to stop, and as the car came by the platform the motorman made a kind of a ‘‘jerk stop,” as he expressed it; that he got his right foot on the step of the motor car and then the motorman made a jerk, and he fell on the platform, but kept hanging with his right foot, and was dragged, he thinks, about five feet to the other end of the platform. He tried to get on the back platform of the motor car and stepped up with his right foot on the first step; that the train stopped about twenty-five feet below the platform. When the train did stop he got on and went to his work. There were two cars in the train, a motor, and one. attached thereto called “a trailer.” The conductor was standing on the front platform of the trailer. Plaintiff testified that the car was going “down the hill pretty fast” and that “they came down tolerably fast” always. Plaintiff further testified that “the right stop was made twenty-five feet below the platform, and that this stop was made for him to. get on down there.”
[70]*70It seems useless to go into the evidence at any greater length. It shows that the plaintiff was standing on the platform, saw the train coming and waved his hand for it to stop; that it was coming fast, the-motorman endeavoring to stop it at the platform, but failed to do so; that the plaintiff endeavored to board the train before it did stop.
Appellant complains first, that the court erred in refusing to give instructions numbers 1 and 2 asked by plaintiff, which.read .as follows:
“1. The court instructs the jury, that although when the occurrence in question happened, the plaintiff had not paid his fare, and by reason of such event got off without paying;-,yet, if the jury believe from the evidence that he got on the step of the car for the purpose of getting upon the platform as a passenger, with the intention of paying his fare when called upon, then he was a passenger, and the defendant owed to him the same duties as if in fact he had.paid his fare.
“2. The court further instructs the jury, that if they believe from the evidence that plaintiff was a passenger on one of defendant’s cars (and while exercising reasonable care and diligence with respect to his own safety), the car was suddenly started, causing the injury now being inquired into, then the burden is-thrown upon the defendant to show to the Satisfaction of the jury that the servants and employees of the defendant, managing the ear, exercised the utmost, human care in the management of the same, or that the accident occurred by reason of some cause not. under the control of the servants and employees of defendant, and, unless the defendant has so satisfied the jury, their verdict should be for the plaintiff.”
By instruction number 1 the plaintiff Would have the court declare that if defendant got on the step of the car for the purpose of getting upon the platform as [71]*71a passenger, with the intention of paying his fare when called upon, those acts made him a passenger, without regard to the fact as to how, when and where he got upon the step of defendant’s car. This instruction wholly ignores the fact as to whether or not defendant ever agreed to accept plaintiff as a passenger, or did any act indicating an intention to accept him as such. Without a contract for carriage on one part shown, and an acceptance on part of the other, either expressed or implied, the relation of passenger and carrier can never exist.
In the case of Schepers v. Railroad, 126 Mo. 665, the court by Macearlane, J., makes use of the following language, which we think decisive of the question raised on this instruction: “It follows from what has been said that plaintiff"did not become a passenger by a mere attempt on his part to board the car while in motion, as is declared by this instruction. There must have been some act on the part of the carrier indicating an acceptance.” The offer must be made to become a passenger on one part, and an acceptance, on the part of the company, of the passenger on the other, before the relation of carrier and passenger can be said to exist.
The trial court committed no error in refusing instruction number 2 asked by plaintiff. The language of that instruction has been frequently condemned by this court. See case of Furnish v. Railroad, 102 Mo. 438, and cases there cited. While in the Furnish case the court refused to set aside a verdict on an instruction where the same language was used as in this, “that the burden is thrown upon the defendant to show to the satisfaction of the jury, etc.,” still it criticises the use of the expression as being improper.
Strictly speaking, the burden of proof of care is never, at any stage of the proceeding, thrown upon [72]*72defendant. The burden at all times rests on plaintiff to prove the allegations of his petition, but on certain facts being shown by plaintiff he is entitled, by reason of the legal conclusions deducible by law from the establishing of those facts to a judgment, if left unexplained by defendant. If the trial court insists on these technical niceties and lawyers see fit to stand on the doubtful language of similarly worded instructions that have been in a manner tolerated and upheld in order to maintain verdicts found thereon, yet at the same time criticised as not being technically accurate, they must take the consequences. The most that this court has ever said by way of approval of instructions worded as this one asked by plaintiff and refused by the court is, that it would not disturb verdicts found upon such instructions, but it has never gone to the extent of saying that, if an instruction similarly worded is denied, it will, for that reason, set aside a verdict found against the party asking it.
Objection is made to instruction number two given at the request of defendant, which is as follows:
Free access — add to your briefcase to read the full text and ask questions with AI
Robinson, J. —
This is a suit brought by plaintiff to recover $5,000 damages for injuries alleged to have been received at one of the defendant’s stations on the St. Charles rock road, in the city of St. Louis, on August 9, 1892. Defendant' is a street railroad company operating its line by electric power.
“Plaintiff’s petition states that as he was about to board one of the trains on defendant’s road for the purpose of being transported as a passenger from its station, and while he was in the act of getting on said train at its platform, but before he had done so, the said train, owing to the negligence and carelessness of the employees or servants of defendant in charge thereof, was suddenly started, and he was thereby thrown vio[69]*69lently down upon the platform and dragged thereon, and that he was thereby greatly bruised and severely injured both internally and.in his limbs.”
The answer was a general denial, coupled with a plea of contributory negligence, and followed by the usual replication. There- was a trial by jury and verdict for defendant. Mnny errors are assigned by appellant; but it is only necessary to notice a few of them in order to show the result we have reached.
'The testimony in brief shows: That plaintiff lives at Wellston, on the south side of the old St. Charles road, about seventy-three steps west of defendant’s track; that his house stands back ten or fifteen feet from the street; that on the morning in question, between 6 and 7 o’clock, he started from his home down town to work; that when he reached the platform he saw a car coming, waved his hand at the motorman to stop, and as the car came by the platform the motorman made a kind of a ‘‘jerk stop,” as he expressed it; that he got his right foot on the step of the motor car and then the motorman made a jerk, and he fell on the platform, but kept hanging with his right foot, and was dragged, he thinks, about five feet to the other end of the platform. He tried to get on the back platform of the motor car and stepped up with his right foot on the first step; that the train stopped about twenty-five feet below the platform. When the train did stop he got on and went to his work. There were two cars in the train, a motor, and one. attached thereto called “a trailer.” The conductor was standing on the front platform of the trailer. Plaintiff testified that the car was going “down the hill pretty fast” and that “they came down tolerably fast” always. Plaintiff further testified that “the right stop was made twenty-five feet below the platform, and that this stop was made for him to. get on down there.”
[70]*70It seems useless to go into the evidence at any greater length. It shows that the plaintiff was standing on the platform, saw the train coming and waved his hand for it to stop; that it was coming fast, the-motorman endeavoring to stop it at the platform, but failed to do so; that the plaintiff endeavored to board the train before it did stop.
Appellant complains first, that the court erred in refusing to give instructions numbers 1 and 2 asked by plaintiff, which.read .as follows:
“1. The court instructs the jury, that although when the occurrence in question happened, the plaintiff had not paid his fare, and by reason of such event got off without paying;-,yet, if the jury believe from the evidence that he got on the step of the car for the purpose of getting upon the platform as a passenger, with the intention of paying his fare when called upon, then he was a passenger, and the defendant owed to him the same duties as if in fact he had.paid his fare.
“2. The court further instructs the jury, that if they believe from the evidence that plaintiff was a passenger on one of defendant’s cars (and while exercising reasonable care and diligence with respect to his own safety), the car was suddenly started, causing the injury now being inquired into, then the burden is-thrown upon the defendant to show to the Satisfaction of the jury that the servants and employees of the defendant, managing the ear, exercised the utmost, human care in the management of the same, or that the accident occurred by reason of some cause not. under the control of the servants and employees of defendant, and, unless the defendant has so satisfied the jury, their verdict should be for the plaintiff.”
By instruction number 1 the plaintiff Would have the court declare that if defendant got on the step of the car for the purpose of getting upon the platform as [71]*71a passenger, with the intention of paying his fare when called upon, those acts made him a passenger, without regard to the fact as to how, when and where he got upon the step of defendant’s car. This instruction wholly ignores the fact as to whether or not defendant ever agreed to accept plaintiff as a passenger, or did any act indicating an intention to accept him as such. Without a contract for carriage on one part shown, and an acceptance on part of the other, either expressed or implied, the relation of passenger and carrier can never exist.
In the case of Schepers v. Railroad, 126 Mo. 665, the court by Macearlane, J., makes use of the following language, which we think decisive of the question raised on this instruction: “It follows from what has been said that plaintiff"did not become a passenger by a mere attempt on his part to board the car while in motion, as is declared by this instruction. There must have been some act on the part of the carrier indicating an acceptance.” The offer must be made to become a passenger on one part, and an acceptance, on the part of the company, of the passenger on the other, before the relation of carrier and passenger can be said to exist.
The trial court committed no error in refusing instruction number 2 asked by plaintiff. The language of that instruction has been frequently condemned by this court. See case of Furnish v. Railroad, 102 Mo. 438, and cases there cited. While in the Furnish case the court refused to set aside a verdict on an instruction where the same language was used as in this, “that the burden is thrown upon the defendant to show to the satisfaction of the jury, etc.,” still it criticises the use of the expression as being improper.
Strictly speaking, the burden of proof of care is never, at any stage of the proceeding, thrown upon [72]*72defendant. The burden at all times rests on plaintiff to prove the allegations of his petition, but on certain facts being shown by plaintiff he is entitled, by reason of the legal conclusions deducible by law from the establishing of those facts to a judgment, if left unexplained by defendant. If the trial court insists on these technical niceties and lawyers see fit to stand on the doubtful language of similarly worded instructions that have been in a manner tolerated and upheld in order to maintain verdicts found thereon, yet at the same time criticised as not being technically accurate, they must take the consequences. The most that this court has ever said by way of approval of instructions worded as this one asked by plaintiff and refused by the court is, that it would not disturb verdicts found upon such instructions, but it has never gone to the extent of saying that, if an instruction similarly worded is denied, it will, for that reason, set aside a verdict found against the party asking it.
Objection is made to instruction number two given at the request of defendant, which is as follows:
“The court instructs the jury that if they believe from the evidence that the plaintiff attempted to board a car of the defendant, while said car was in motion, and that the plaintiff was guilty of negligence in so doing and in tha manner in which he so attempted to board said moving car, and that if the jury further find and believe from the evidence that the plaintiff’s said negligence directly contributed to his injury, then the jury will find their verdict in favor of -the defendant.”
This instruction placed properly before the jury the question whether or not plaintiff was guilty of negligence or want of care which directly contributed to the injury when plaintiff attempted to get on the platform of defendant’s car. 1‘t must be remembered that plaintiff himself testified that the train was running [73]*73“pretty fast.” Nor does the ease of Fulks v. Railroad, 111 Mo. 335, support plaintiff in his contention. In fact the instruction was, if anything, in favor of plaintiff in view of all the evidence in the case.
This instruction very clearly does not place upon plaintiff the burden of showing that he was not guilty of contributory negligence, and the record before us contains abundant evidence, especially in connection with the physical facts, to prove that the train was moving when plaintiff attempted to board it. In the Fulks case, it is said — page 340: “To attempt to get on or off a train in rapid motion would be an act of gross negligence; but it is generally held that the courts will not, as a matter of law, declare a person guilty of contributory negligence who attempts to get on or off a train while it is moving slowly, especially at a platform. The question of contributory negligence in such cases is one of mixed law and fact, and should be determined by the jury, under the guide of proper instructions, in the light of all the attending circumstances.”
Instruction number 2 given for defendant is in line with the other instructions asked by defendant and given at its request, and very carefully marks the distinction between requiring the plaintiff to show that he was not guilty of contributory negligence and allowing the jury to find in the light of all the evidence that such was the fact.
The objection is also made that instruction number 2, given at the request of plaintiff, required the jury to find that plaintiff was a passenger, and that instruction number 3 for plaintiff, and all the instructions for defendant, eliminate that issue, are conflicting and for that reason are erroneous. This objection is not tenable for the reason that, if any error there was, instruction number 3 for plaintiff, which eliminates [74]*74that issue, was requested by plaintiff, and he certainly can not complain of error which he himself has-introduced into the record. However, we think that no error was thereby committed, for, in view of all the evidence, as we said before, it can certainly make-no difference whether or not plaintiff was a passenger at the time he attempted to get on defendant’s train, the issue before the jury being as to whether of not, in the light of all the evidence, plaintiff was guilty of negligence or want of care in his attempt to board defendant’s car which directly contributed to the-injury of which he complained.
The statement of the objection made by appellant to instruction number 4 given for defendant, “No evidence in the record to support it,” is, of itself, an answer to the objection. If no evidence, no finding-could be made -on the false issue presented; and, again, how could the plaintiff claim that he was injured by an instruction that told the jury, “that defendant was not liable for any damages that resulted to plaintiff by reason of any lack of care on his part in propei’ly caring for, and treating the injury which he received while attempting to board the defendant’scar, and if the jury believe from the evidence that, by any act of imprudence on the plaintiff’s part, or that,, by want of proper care or treatment of the injury received by the plaintiff, said injury was - thereby aggravated, then the defendant is not liable for the-damages resulting to the plaintiff through said want of' care or treatment,” when the jury found, from all the-evidence offered, that defendant was not in anywise-liable. If no liability is established, then the question of its limitation is certainly not serious. The instruction, in view of the facts proven, or rather want of' facts, was erroneous, but, in view of the finding of the jury, was alike harmless.
[75]*75The other objections made by plaintiff are immaterial and unnecessary to notice. All the issues were fairly submitted to the jury. Plaintiff’s counsel objects to the court having asked questions of the various witnesses, and, also, to the fact that one or two of' the jurymen also asked questions of the witnesses in their endeavor to properly understand the facts in evidence. We do not see how this could have possibly been prejudicial to the plaintiff, and do not see why it was not a commendable thing in both the court and the jury endeavoring to ascertain just exactly the-situation at the time of the injury, so that they could properly determine the case before them. In fact, the objection is rather a novel one coming from the plaintiff.
All of which results in an affirmance of the judgment.
All concur.