In Division One.
VALLIANT, J.Plaintiff was a passenger on a street car on defendant’s railway in St. Louis and received injuries to her person by falling while she was in the act of alighting. The petition alleges that when the car reached the point of the plaintiff’s destination, in obedience to her signal, for the purpose of allowing her to alight, it either stopped or slowed down so as to be moving, imperceptibly (plaintiff being, unable to say which), whereupon she attempted to alight and while in the act of doing so the defendant’s servants in charge of the car negligently caused or suffered it to move forward with increased motion, which caused the plaintiff to be thrown upon the street and suffer certain severe injuries. The answer was a general denial and a plea of contributory negligence, to which there was a reply.
The testimony on the part of the plaintiff tended to prove the cause of action as stated in her petition, and that on the part of the defendant tended to prove the contrary and to sustain the plea of contributory negligence. •
*142There were four witnesses examined on the part of the plaintiff and five for the defendant. Their testimony, as reported, covers fifty-three pages in the bill of exceptions. The instructions given cover four closely written pages of manuscript.
The instructions given on behalf of the plaintiff were to the effect that if for the purpose of allowing the plaintiff to alight the car had been stopped or slowed down so that its motion was imperceptible and the plaintiff thereupon was in the act of alighting and while she was in that act and before she had a reasonable time in which to alight, the servants of defendant in charge of the car caused or suffered it to move forward with an increased motion, and thereby the plaintiff was thrown upon the street and injured, and that if the defendant’s servants had exercised a high degree of care and skill such as careful and skillful railway operators would exercise under like circumstances they would have prevented such motion of the car, but that they neglected tó do so, the plaintiff was entitled to recover.
The instructions for the defendant were to the effect that if the plaintiff suffered the injuries complained of in consequence of attempting to alight from the ear while it was moving, under such circumstances as that a woman of ordinary prudence would not have so attempted, she was not entitled to recover.
Then the court of its own motion gave this instruction which is the only one complained of:
“The burden of proving the facts set out in these instructions as necessary to be proved in order to enable plaintiff to recover is upon the plaintiff — that is, the preponderance or greater weight of the testimony must be on the side of the plaintiff; and unless she has so proven them she is not entitled to recover. The burden of proving any negligence in the plaintiff is upon the defendant.”
To the giving of which exception was taken.
*143The following which was one of the rules of practice of that court was enforced in this case:
“Rule 29. Trial, Argument of Counsel. — In cases tried before a jury the plaintiff shall have the privilege^ of opening and closing the argument; the opening argument to be made after the evidence is in, and after the instructions, if any, have been given. Should the plaintiff decline to make the opening argument, he will be considered as thereby waiving his privilege of closing the same, and shall not be allowed to do so, but the defendant shall, nevertheless, have the privilege of making his argument. Before the argument begins, the court will announce how much time will be allowed on each side for argument, each side being allowed the same length of time. The plaintiff may apportion the time allotted to him between his opening and closing argument, as he may choose; provided he shall not consume more than one-half of his time in his closing argument. In those cases in which the court decides that the defendant has the affirmative of the issues, he shall have the opening and closing of the argument in like manner, and under the same restrictions, as above laid down for the plaintiff. The court may in its discretion change the order of argument as above described, in a particular case, where the circumstances in the opinion of the court require it, and where it is so ordered before the argument begins. The court may in its discretion allow the argument in a particular case to extend beyond the allotted time if the circumstances in the opinion. of the court render it proper to do so.”
The court limited the arguments to fifteen minutes on each side, counsel for plaintiff asked longer time, but the court refused the request and the plaintiff excepted. The verdict and judgment were for the defendant, and plaintiff appealed.
I. Respondent presents the point that the abstract of appellant does not show that there was a final *144judgment rendered or appeal allowed, and further that it does not show that there is a record of the filing of the- hill of exceptions. The cause is not here, however, on the short form allowed by statute, but on the full record, and that record shows the final judgment, the order allowing the appeal, and the record entry of the filing of the bill of exceptions. It also contains the full bill of exceptions. The abstract contains a recital of all these facts and, accompanying as it does the full record, is sufficient.
II. Appellant assigns for error the giving of the instruction above quoted, which is to the effect that the burden was on the plaintiff to prove the facts set out in the instructions as necessary to entitle her to recover.
It is contended that this instruction throws upon the plaintiff the burden to prove that the sudden starting of the car after it had stopped, and while the plaintiff was alighting, could have been prevented by the exercise of the high degree of care that was incumbent on the carrier. We do not think the instruction susceptible of that construction. If the car had stopped or if it had slowed down to such a degree that it would have been reasonably prudent for the plaintiff to have attempted to alight, and she had so attempted, but while in that act the car had started forward with such a motion as to throw her down the defendant would have been liable for the result, unless it could show that such movement of the car could not have been prevented by the exercise of that degree of care which the carrier owed the passenger, and the burden of showing that fact would have been on the carrier. [Hutchinson on Carriers (2 Ed.), secs. 800-801; 3 Thompson on Neg., secs. 2754, 2759, 2760, 2770; Dougherty v. Railroad, 81 Mo. 325.] But there was no such’question in this case. It was not asserted in any manner by the defendant that the alleged sudden starting of the car was a fact beyond its control; there was neither allegation nor *145proof on that point. The defense was a denial that the car so started and an assertion that it had not stopped' as alleged, but was moving at a rate that rendered it dangerous for the plaintiff to attempt to alight as she did. The effect of the instruction complained of was to throw the burden on the plaintiff to prove that the car stopped or that it slowed down to the degree alleged by the plaintiff and that a new impetus was given to it while she was in the act of alighting. Those were the facts which the instruction required the plaintiff to-prove and in that respect it was correct. There was no necessity for the mention in the plaintiff’s instructions of the degree of care to be exercised by the defendant in preventing the sudden starting of the car, for the reason that there was no claim by the defendant that the car started from a cause beyond its control. If there had been evidence of such a condition then the court would have qualified the instructions given at the instance of the plaintiff by saying in effect that the defendant was liable under the facts stated unless the jury should find from the evidence that the defendant’s servants could not have prevented the starting of the car by the exercise of the highest degree of care devolving on the carriers. But there was no such issue in this case.
There was no error in the instruction relating to the burden of proof.
III. Appellant complains of the rule of court above quoted regulating the order of argument in jury trials and of the action of the court under that rule. The rule itself is a reasonable regulation and is within the power of the court to make. In Blewett v. Railroad, 72 Mo. 583, this court said that the order of argument in such case was a matter to be regulated by the rules of court. It is universally recognized that in debate he who has the affirmative of the question has the right to open and close. This right as it affects one’s own in*146terest.involves also a duty as it affects the action of the court or jury and the interest of his adversary. He who has the affirmative of the issue, and who, therefore, has the right to close the argument, owes it as a duty as well to the tribunal, whose judgment he seeks to pursuade, as to his adversary, against whom he seeks the verdict, to make a fair presentation of his case in an opening argument after the evidence has been adduced, to the end that his adversary may know what he is to answer and the jury may fairly understand the questions of fact they are to decide. The rule of court now under discussion seems to have been designed to enforce that order of procedure. Its provision that the plaintiff shall not use more than half the time allotted to him in his closing argument is to induce him to use at least half of it in his opening argument. "We find no objection to the rule.
IY. But appellant has a just cause to complain of the action of the court in limiting the time for argument in this case to fifteen minutes on each 'side. The effect of that ruling was to allow the plaintiff only seven and a half minutes in which to make his closing argument. Whilst the rule coinmends itself to our sense of justice, yet, in order to promote the purpose for which it was designed, the court should allow a reasonable time to enable the plaintiff to present his case by argument to the jury both in opening and closing. The limiting of the time for argument is a matter in the sound judicial discretion of the court, and an appellate court will hesitate to interfere with the exercise of that discretion. But when the appellate court is satisfied that that discretion has not been well exercised and that injustice has been done, it is its duty to reverse the judgment. It is impracticable to lay down any fixed rule as to the length of time the trial court should allow for argument ; that is a matter addressed to the sound discretion of the trial court in the light of the circumstances of the particular case on trial. We will not say that a court *147would not in any case be justifiable in limiting tbe time for argument to fifteen minutes on a side, for in some cases that might be sufficient. But in this case a fair argument of the questions of fact, in the light of the conflicting evidence, could not be made, within the time the court limited for that purpose. There were in all nine witnesses, whose testimony covers fifty-three pages of manuscript, and in which there was much conflict. Besides, there was some documentary evidence. The hearing of the evidence must have occupied several hours. The instructions were elaborate, ringing the changes on the various forms of the issues to be tried. Under the circumstances of this case the limiting of the time for the argument to fifteen minutes on a side was an unreasonable exercise of the power of the court in that respect, and for that reason the judgment ought to be reversed, the cause remanded and a new trial awarded.
Brace, P. J., and Robinson, J., concur; Marshall, J., concurs in all except that he is of the opinion that under the facts of this case the limit of fifteen minutes for argument was not unreasonable and hence that the judgment should not be reversed on that account.In Bano.
PER CURIAM. — On the hearing in Banc, paragraphs marked I, II, III in the foregoing opinion by Valliant, J., in Division No. 1, are concurred in by all the judges; paragraph marked IY is concurred in by Robinson, G. J., Brace and Valliant, JJ., but is not concurred in by Marshall, Gantt, Fox and Burgess, JJ., who, on this point, concur in the opinion by Marshall, J.