Dowd v. Metropolitan Street Railway Co.

WOODSON, J.

This suit was brought by plaintiff in the circuit court of .Jackson county, for the purpose of recovering $5,000 damages for personal injuries sustained by him in consequence of the alleged negligence of defendant in suddenly starting its car forward while he was in the act of alighting therefrom, and thereby throwing him with great force and violence to the ground and inflicting the injuries complained of.

The trial resulted in a verdict and judgment for defendant, and the motion for a new trial was sustained by the court for the reason assigned — that it erred in giving for defendant instruction numbered five. Prom the order of the court granting the new trial, the defendant properly appealed.

The evidence for plaintiff tended to show that he was a passenger upon the car in question; that when it neared his destination he signaled the conductor of his intention to alight, and walked to the steps of the car, holding to the railing; and that while in the act of alighting the car suddenly, without warning, made a quick forward movement and a lurch to the side, thereby throwing him to the ground and injuring him.

The evidence for defendant contradicted that of plaintiff, and tended to show contributory negligence on the part of plaintiff.

The issues were submitted to the jury under the instructions of the court, none of which are complained of excepting said instruction numbered 5, which reads as follows:

“5. You are further instructed that in this case, the mere fact, if true, that plaintiff was injured by falling from a car of defendant, gives bim no right to sue defendant and recover damages. Before, under *61any circumstances, plaintiff is entitled to a verdict, you must believe and find from tbe greater weight of all the credible evidence in the case that his injury was actually caused by the negligence of the defendant’s servants as he has specified in his petition and in the manner submitted to your consideration. If his injuries were not actually caused by such specified negligence, then he has no case and cannot recover, even if he did fall while getting off of the car and was injured thereby. But even if you should find that he was injured by such negligence, still the plaintiff cannot recover if he by his own act or conduct in any degree directly contributed tó his own injury.”

I. There is but a single question presented by this record, and it challenges the correctness of instruction numbered five given for the appellant. Counsel for respondent contends that said instruction did not properly declare the law applicable to the facts of the case, and for that reason it should not have been given, and consequently, the court properly granted a new trial because of its error in giving it. Upon the other hand, counsel for appellant insist that said instruction properly stated the law to the jury, and that there was no error in giving it, consequently the court erred in granting a new trial for the reason assigned..

Clearly, that instruction did not correctly declare the law. The last clause thereof told the jury that plaintiff could not “recover if he by his own act or conduct in any degree directly contributed to his own injury. ’ ’

It will be observed by reading the instruction that it did not limit the act or conduct of respondent contributing to his injury to a negligent act, but absolved appellant from all liability if any act of respondent, whether negligent or otherwise, directly contributed to his injury.

*62Under this instruction the jury could very properly have found for the defendant, simply because he walked to the steps of the car while it was in motion, and that, too, without first finding that his conduct in that regard was negligence on his part. The last clause of this instruction differentiates it from all of those given in the cases cited by counsel for appellant and relied upon as sustaining their contention in this case.

We are, therefore, of the opinion that the court did not err in granting a new trial.

The judgment is affirmed.

All concur, except Valliant, J., absent.