The opinion
ON MOTION FOB. BEHEAKING.
Bond, J.
It is .insisted in the motion for rehearing that the ruling in Ridenhour v. R’y, 102 Mo. 270 , warranted the instruction held to be misleading in the opinion in this case. An examination of the case cited discloses that the petition therein charged that defendant (street railway company) “at the request of plaintiff” *170 stopped its cars for the purpose of permitting’ him to get off, but negligently caused the cars “to be put in motion while plaintiff was in the act of leaving the car, and without giving him a reasonable time to alight safely,” thus causing the injuries sued for. The evidence in that case was that plaintiff signaled the conductor to stop the car; that the conductor rang the bell for the car to stop; that it “did not stop right still, just slacked up,” and when plaintiff had gotten one foot off, “they gave a jerk, and started right up.” In construing the petition in the light of this testimony, the court ruled both on the hearing and afterward on rehearing as follows: “The statement made in the petition that the defendant ‘stopped the cars for the purpose of permitting plaintiff to alight therefrom is only the statement of a matter of inducement, and no negligence is charged in doing that act. That negligence charged consists in permitting the car to be put in motion while the plaintiff was in the act of leaving the car.” In other words, the court said that the petition then under review only alleged negligence in the matter of causing the cars to be so put in motion that the alighting passenger could not safely leave them, and hence that it was immaterial whether before taken on such motion the cars had stopped, or merely slacked up; that the cause of action arose solely on account of the new motion given to the cars while the passenger was in the act of dismounting, and not on account of their previous state or condition. No other conclusion could have been announced in that case under the facts tending to show that the conductor knew of the wish of the passenger to leave the train, and signaled the car to be stopped for that purpose. The cause of action stated in the petition in the case at bar is radically different. In the present case the plaintiff neither charges nor proves that the con *171 ductor was aware of his intention to board the train. If the train was moving at the time he attempted to mount it, the law did not absolutely impute knowledge of his intention to the conductor, as it would have done if the train was standing still. If the petition in the case at bar had charged that plaintiff attempted to board a moving train with knowledge on the part of the conductor of such attempt actual or constructive (upon reasonable opportunity), the instruction presenting that issue would have been correct. As, however, the petition in this case, when the amendment is exscinded, only contains a statement of a cause of action for mounting a standing car, the unpleaded cause of action arising from an attempt to board a moving car should not have been submitted to the jury by an instruction. It is apparent therefore that the case relied on in the motion for rehearing has no logical bearing on the question determined in the case at bar. The motion is therefore overruled.
Judge Bland concurs. Judge Biggs dissents.