13 S.W. 889 (Mo. 1890), Ridenhour v. Kansas City Cable Railway Co.

Citation:13 S.W. 889, 102 Mo. 270
Opinion Judge:Sherwood, J.
Party Name:Ridenhour v. The Kansas City Cable Railway Company, Appellant
Attorney:Johnson & Lucas for appellant. J. F. Waters and Crittenden, McDougal & Stiles for respondent.
Judge Panel:Sherwood, J. Black, J., concurs.
Case Date:June 02, 1890
Court:Supreme Court of Missouri
 
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Page 889

13 S.W. 889 (Mo. 1890)

102 Mo. 270

Ridenhour

v.

The Kansas City Cable Railway Company, Appellant

Supreme Court of Missouri

June 2, 1890

Rehearing Denied 102 Mo. 270 at 283.

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

Johnson & Lucas for appellant.

(1) The demurrer ought to have been sustained. There was no evidence to sustain the issues presented by the pleadings. Mays v. Pryce, 95 Mo. 613; Ischer v. Bridge Co., 95 Mo. 261; Harty v. Railroad, 95 Mo. 368; Gurley v. Railroad, 93 Mo. 450; Schlereth v. Railroad, 96 Mo. 509; Clotsworthy v. Railroad, 80 Mo. 220; Nelson v. Railroad, 68 Mo. 595; Current v. Railroad, 86 Mo. 66. (2) Plaintiff's first instruction ought not to have been given. First. An instruction is improper which submits an issue to the jury when there is no evidence to support it. Harty v. Railroad, 95 Mo. 368; Bowen v. Railroad, 75 Mo. 458. Second. The instruction is calculated to mistake or confuse the jury, and should not have been given. Donohue v. Railroad, 83 Mo. 560. Third. It ignores a material issue presented by the pleadings. Budd v. Hoffheimer, 52 Mo. 297; Bank v. Armstrong, 62 Mo. 59; Jackson v. Boyles, 67 Mo. 609; Crews v. Lackland, 67 Mo. 619; Greer v. Parker, 85 Mo. 107; Glass v. Gelvin, 80 Mo. 302. Fourth. It ignores the question of contributory negligence. Gilson v. Railroad, 76 Mo. 286. Fifth. It inconsistently assumes a state of facts that would preclude a recovery, and concludes that such facts will authorize a recovery. (3) Second instruction is in conflict with the decision of this court in Erwin v. Railroad, 9 S.W. 579; McCarty v. Railroad, 92 Mo. 541; Ostertay v. Railroad, 64 Mo. 424; Railroad v. Declaney, 82 Ill. 198; Plumley v. Birge, 124 Mass. 57; Shearman & Redfield on Neg. [4 Ed.] p. 108, sec. 73; Dowd v. Chicopee, 116 Mass. 96. (4) Defendant's first instruction ought to have been given. Schlereth v. Railroad, 96 Mo. 509.

J. F. Waters and Crittenden, McDougal & Stiles for respondent.

(1) The plaintiff was a competent witness. The trial court upon seeing, hearing and observing the witness found that he was capable "of receiving just impressions of the facts respecting which he was examined" and "of relating them truly," and thereupon admitted his testimony. This does not fully appear in appellant's abstract; but upon such an examination by the trial judge this plaintiff was held to be a competent witness, and that finding "is not subject to review in this court." State v. Jefferson, 77 Mo. 136, 138; State v. Scanlan, 58 Mo. 204. (2) The petition stated a cause of action. The negligence charged was that defendant suddenly started its train while plaintiff was in the act of leaving the car. The train did not come to a full stop; it came almost to a standstill, and then suddenly started with a violent jerk which threw plaintiff off. There was therefore no substantial variance between the allegation and proof. Werner v. Railroad, 81 Mo. 368; Leslie v. Railroad, 88 Mo. 50; Litchfield Coal Co. v. Taylor, 81 Ill. 590. "Besides this, it is provided by section 3565, Revised Statutes, that no variance shall be deemed to be material unless it has actually misled the adverse party to his prejudice, and that it can only be taken advantage of by affidavit, showing in what respect the party has been misled. No such affidavit was filed in this case." Olmstead v. Smith, 87 Mo. 602, 607. "No such showing was made, and it is too late to complain here." Bank v. Wills, 79 Mo. 275, 276, and cas. cit. (3) The court below committed no error in either giving or refusing instructions.

Sherwood, J. Black, J., concurs.

OPINION

Page 890

[102 Mo. 273] Sherwood, J.

-- Action by plaintiff, through his next friend, to recover $ 25,000 for personal injuries received by him on the seventeenth day of April, 1886, in alighting from a train of defendant's cars near Holmes street, in Kansas City, Missouri. The claim of the plaintiff was that he was permanently injured by the cars running over his left arm, bruising and lacerating the same. The verdict of the jury was for the sum of $ 8,500. The answer of the defendant was a general denial, as well as a plea of contributory negligence. There was testimony to sustain the theory of the plaintiff's case, and testimony of a contrary effect. At the time of the accident the plaintiff was between nine and ten years of age.

The petition, omitting formal parts, is as follows: "That on arriving at Eighth and Holmes street, aforesaid, defendant, at the request of plaintiff, stopped the cars for the purpose of permitting plaintiff to alight therefrom, but that defendant, wholly neglecting and disregarding its duty in that behalf, in not using proper care and caution in managing and operating its said cars, carelessly, recklessly, negligently and wantonly permitted said car, upon which plaintiff was at said time a passenger, 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 therefrom, whereby plaintiff was thrown under the car, the wheels of which passed over plaintiff's left arm, tearing, lacerating, fracturing and mangling same, and plaintiff was otherwise bruised, wounded and injured; and also, by means of the premises, plaintiff became and was sick, sore, lame and disordered, and so continued for a long space of time, during which said time plaintiff suffered and [102 Mo. 274] underwent great bodily pain and mental anguish; that said injuries resulted to plaintiff wholly on account of the negligent, careless, reckless and wanton conduct of defendant in suddenly starting its said car while plaintiff was in the act of getting off same, as aforesaid, and that, by reason of said injuries, plaintiff has been prevented from performing manual labor as heretofore, and is by said injuries otherwise greatly injured, and his health permanently impaired, and is rendered a cripple during his natural life, and unfit for the performance of manual labor during the same. Wherefore, plaintiff prays judgment for $ 25,000 (twenty-five thousand dollars), with costs."

The answer is a general denial, and a plea of contributory negligence; and the reply, a general denial of the new matter in the answer.

As there is no dispute as to the correctness of defendant's abstract as to the evidence adduced, that evidence will be accepted and inserted here (except that portion which relates to the plaintiff's competency, which will be sufficiently noticed in the opinion). That evidence is the following:

The plaintiff, Albert Ridenhour, testified: "I will be ten years old next January. Live on Charlotte street. I had been at work for a man by name of Mr. Henry for about a week. He kept a fruit stand at the corner of Sixth and Delaware. My folks lived on Charlotte street, where they are living now. They moved there on the Saturday evening before I was hurt. I had been at work that day for the gentleman by whom I was employed. About five o'clock, I started home. I went to the junction at Ninth street, and got on the cars. They were going towards Woodland avenue. I went in the gripcar, and remained there during the whole ride. I saw the conductor, and held up my hand, and told him I wanted to get off, just before I got to Holmes street. He rang the bell for the car to stop, and I started to get off; and he started up before I got off, [102 Mo. 275] just as I had one foot off the step, and hand hold of the handle of the car. The car did not come to a full stop. It started with a jerk, and throwed me off; and my left arm went under the wheel, and it ran over my arm. The conductor was on the platform. I had on a fur cap. This is the one (showing witness a fur cap). Yes, sir; I was barefooted, and had on that cap. (Witness takes off his coat, and makes a profert of his arm.) I cannot stretch out my fingers. I was taken to Mr. Newman's store, at the corner of Eighth and Holmes. I had been there before, and know the way home from this point. My arm and my back pained me severely. Dr. Rieger, the company's surgeon, attended on me. I suffered pain for four weeks."

"Q. State to the jury whether or not you have suffered since, -- whether or not you suffer now at any time?" (Objected to by defendant's counsel. Objection overruled by the court. The defendant, then and there, by its

Page 891

counsel, duly excepted.) "My arm hurts yet, right there on the bone. I am awakened at night with pain."

On cross-examination, witness testified: "I had been working for Mr. Henry about a week. It was after eight o'clock in the evening that I left his place, on the day of the accident. I had never worked for him before. Ma had washed for him. I never worked for anybody before. It is half a block from Eighth to Charlotte. It is the first house. I went into the passenger-car, and found that full, and then went into the gripcar, and took a seat right close to the gripman. The conductor came around when the car was near Holmes street. It was near Holmes street that I told him I wanted to get off at Holmes. I had been up to that store that morning, and knew the way from there home. I was afraid I could not find my way from Charlotte street. I can see the cable cars from our house, and our house from the cable cars. I had been to Eighth and Charlotte before, and knew the streets around there. Had never [102 Mo. 276] been at the grocery store before. When I told the conductor I wanted to get off at Holmes street, he was out on the platform of the other car. I did not call out to him. I just held up my hand, and he seen me. I told him I wanted to get off. He rang the bell. The car did not stop right still. It just slacked up. I went out to the door to get off; and, just as I had one foot off, they gave a jerk, and started...

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