Mathews v. Metropolitan Street Ry. Co.

• Citation: 137 S.W. 1003,156 Mo.App. 715
• Parties: EUNICE E. MATHEWS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 29 May 1911
• Court: Court of Appeals of Kansas

137 S.W. 1003

156 Mo.App. 715

EUNICE E. MATHEWS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 29, 1911

Appeal from Jackson Circuit Court.--Hon. H. L. McCune, Judge.

Judgment reversed.

John H Lucas and Charles A. Loomis for appellant.

(1) The court erred in refusing to give a peremptory charge in favor of the defendant. There was no evidence to authorize a verdict on either specification of negligence. Nellis, Street Railroad Accident Law, pp. 59, 183; Fuchs v. St Louis, 133 Mo. 201; Fuchs v. St. Louis, 167 Mo 645; Aldrich v. Transit Co., 101 Mo.App. 90; Sherman & Redfield Neg. (4 Ed.), sec. 59; Lee v. Jones, 181 Mo. 298; Glasscock v. Dry Goods Co., 106 Mo.App. 663. (2) The court erred in admitting incompetent evidence and refusing to admit competent evidence. Incompetent. Gates v. Railroad, 44 Mo.App. 488; Fullerton v. Fordgee, 144 Mo. 519; Culbertson v. Railroad, 140 Mo. 35; Mammerberg v. Railroad, 62 Mo.App. 563; Ruschenberg v. Railroad, 161 Mo. 70; Heinzle v. Railroad, 182 Mo. 528. (3) In giving and refusing instructions manifest error was committed. They were unsupported by evidence, ignored the issues, assumed the facts and were misleading. Ryan v. McCully, 123 Mo. 646; Carroll v. Carroll, 110 Mo. 557; Woods v. Campbell, 110 Mo. 572; Jordan v. Hannibal, 87 Mo. 673; Albert v. Besel, 88 Mo. 150; Heinzle v. Railroad, 182 Mo. 559. (4) In overruling motion for a new trial. Whitsett v. Ranson, 79 Mo. 260; Lennon v. Railroad, 94 S.W. 975; Gilkeson v. Railroad, 222 Mo. 202; Casey v. Transit Co., 205 Mo. 721; Aley v. Railroad, 211 Mo. 481.

Harkless, Crysler & Histed for respondent.

(1) The defendant company had no right to maintain the standard or post in such proximity to its moving cars as to endanger persons who in the exercise of due care should attempt to board said cars. Seymour v. Citizens Ry. Co., 114 Mo. 266; Kreimelmann v. Jourdan, 107 Mo.App. 64; Street Ry. Co. v. Polkey, 106 Ill.App. 98; Kird v. New Orleans, etc., Ry., 109 La. Rep. 525, 33 So. 587. (2) The question of the defendant's negligence in maintaining the standard or post was for the jury. Paden v. Van Blarcom, 100 Mo.App. 185, 194; Kreimelmann v. Jourdan, 107 Mo.App. 64; Withee v. Somerset Traction Co., 98 Me. 61, 56 A. 204; Young v. Oil Co., 185 Mo. 634; Street Ry. Co. v. Polkey, 106 Ill.App. 98. (3) The mere facts (if true) that similar casualties were infrequent or had never occurred, or that the standard had been maintained in this position for a considerable length of time not controlling on this issue. Rogers v. Meyerson Printing Co., 103, Mo.App. 686, 691; Brunke v. Tel. Co., 115 Mo.App. 36. (4) The defendant having by its own instructions submitted to the jury the question of defendant's negligence cannot repudiate that theory in this court. Walker v. Robertson, 107 Mo.App. 571; Hewitt v. Price, 99 Mo.App. 666. (5) The conduct of the defendant's conductor is to be tested by that of an ordinarily prudent man under a similar situation. This included reasonable presence of mind. The defendant is not to be excused from the circumstance that in the excitement of the moment the conductor lost his head. It was a question for the jury none the less. Howell v. Lansing City Elec. Ry. Co., 136 Mich. 432, 99 N.W. 406; Barry v. Railroad, 119 Ia. 62 95 N.W. 229. This was the theory upon which defendant's own instruction submitted the question to the jury. (6) All of the instructions given by the court to the jury are to be read in connection with each other. They are to be considered as a whole. Montgomery v. Railroad, 181 Mo. 508. (7) The defendant's instruction upon the issue of Mathew's contributory negligence being abstract declarations of law, it was not error for the court, at the instance of the plaintiff, to give a mere specific instruction applying the law to the facts as she claimed them to be by the evidence produced at the trial. Devitt v. Railroad, 50 Mo. 302; Tyler v. Hall, 106 Mo. 313; Stewart v. Sparkman, 75 Mo.App. 106.

OPINION

JOHNSON, J.

Plaintiff, the widow of George Mathews, deceased, sued to recover damages for the death of her husband which she alleges was caused by the negligence of defendant. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $ 4500 and defendant appealed to this court. We certified the cause to the Supreme Court but that court sent it back and it is now before us for determination.

Mr. Mathews was killed late in the afternoon of September 28, 1903, by falling from an electric street car operated by defendant on its Eighth street line in Kansas City. The car was going east on Eighth street and had just started from Wall street where it had stopped to receive passengers. Mathews, who was forty-four years old and weighed about 210 pounds, came north on Wall street and, doubtless, intending to become a passenger on the car, ran to the rear steps and attempted to board the car while it was in motion.

There were two tracks and the car was running on the south track. From Wall street to Walnut, three blocks east, there is a steep ascent and the tracks run over a steel and concrete viaduct built by defendant and used only for street car traffic. The viaduct is just wide enough for the tracks, the outer lines of the structure being only some eighteen inches from the outer rails. The body of the car Mathews attempted to board extended over the track far enough to bring the perpendicular line of the south side of the car about on a line with the edge of the viaduct table. The car was just starting up the west end of the viaduct and was moving slowly when Mathews grasped the handhold and attempted to board it. He succeeded in placing one foot on the lower step but, despite his repeated efforts to pull himself up, was unable to do so. The conductor, who was either in the vestibule or in the back of the car, quickly discovered his plight and tried to help him. It is not seriously contended that the conductor was remiss in discovering the peril or in going to the assistance of the endangered man but it is insisted that he was negligent in not giving the signal to stop the car instead of trying, as he did, to pull Mathews up to a safe footing on the step. The combined efforts of Mathews and the conductor continued until the rear end of the car reached a point 92 feet east of the west end of the viaduct, which, at that place, was 16 feet above the street. Mathews still was being dragged along, supported by his arms and the lifting and pulling of the conductor, and his legs protruded beyond the side of the car. At this point a sign giving warning to trespassers had been placed by defendant. The sign was held aloft by a perpendicular iron rod attached to the south edge of the viaduct and bent out at or near the place of attachment so that the perpendicular part of the rod cleared the lower step of the car by about eight inches. Mathews' leg collided with this rod, he was knocked off the car, and fell to the pavement below.

Plaintiff insists that it was negligence for the defendant to maintain the sign in a place where its supporting rod would be so close to passing cars as to endanger the safety of a person in the situation of her husband. The court overruled defendant's requests for a peremptory instruction and submitted to the jury the issues of whether defendant was negligent in maintaining the sign in the manner described and whether the conductor was negligent in not giving a signal to stop.

There is nothing in the suggestion of plaintiff that its adversary is precluded from urging the demurrer to the evidence in this court for the reason that it offered, and the court gave, instructions which recognized the issues of negligence tendered by plaintiff as issues for the jury to determine. When a defendant is forced by the adverse rulings of the court to abandon one position and fall back to another he may return in the appellate court to his first position if he has properly preserved his exceptions to the adverse rulings. We find the exceptions to the refusal of defendant's demurrers to the evidence are preserved and that plaintiff is wrong in thinking that this case falls within the rule recently applied by this court in McKee v. Jones D. G. Co., 132 S.W. 1191.

We find ourselves unable to agree with the view of some of the material facts expressed as follows in the brief of counsel for plaintiff: "Mathews was not in any danger except from being struck with the post. He was a man of large and powerful physique. It was palpable to the most casual discernment that with his two hands firmly grasping the handrails and his knees and body resting on the steps he was so far as any hazard from the mere movement of the car was concerned, in a position of perfect safety. Uncomfortable as his position was, he unquestionably could have ridden the entire distance of the viaduct without harm, but for the obstruction near the track. It was perfectly obvious that the puny efforts of the conductor to reach over and pull him farther upon the car before they would reach the standard were bound to be futile and unavailing. This was so palpable that a failure to recognize it by the conductor can be ascribed to nothing else than a complete loss of his senses for the time being."

The inference that the weight of Mathews' body was being supported by the car steps rests on the testimony of a witness from which we give this quotation: "At that moment this man flashed across the sidewalk there in the ordinary way and grabbed the car and stepped onto the first--onto the bottom step with one foot and hopped with the other, but never hopped on--he always hit underneath. He hopped, probably, twice or three times, and as he went back onto the...