Ridenhour v. Kansas City Cable Ry. Co.

• Decision Date: 01 December 1890
• Citation: 14 S.W. 760,102 Mo. 270
• Parties: RIDENHOUR v. KANSAS CITY CABLE RY. CO.
• Court: Missouri Supreme Court

14 S.W. 760

102 Mo. 270

RIDENHOUR v. KANSAS CITY CABLE RY. CO.

Supreme Court of Missouri.

December 1, 1890.

CARRIERS — INJURY TO MINOR — DEGREE OF CARE — PLEADING — VARIANCE.

1. The fact that a passenger is evidently very young is a circumstance that must be taken into consideration by a carrier in the discharge of its duty to stop the car a sufficient length of time to

give the passenger reasonable opportunity to alight in safety.

2. There is no such variance between the allegation of the complaint that defendant "stopped" the car to permit plaintiff to alight, and negligently permitted it "to be put in motion while plaintiff was in the act of leaving the car without giving him a reasonable time to alight safely therefrom, whereby he was thrown under the car," etc., and proof that the car slackened up only, and then started up with a sudden jerk, etc., as would preclude the submission of the cause to the jury.

3. Even if there was a variance, still no affidavit having been made in the trial court proving that defendant had thereby been prejudiced, it will be deemed immaterial within Rev. St. Mo. 1889, § 2096.

4. The court instructed the jury that plaintiff was entitled to a verdict if they should find inter alia that defendant's servants "did not stop a sufficient length of time to permit the plaintiff, acting with reasonable care and diligence for one of his years, to alight in safety." Held, that this did not require a finding that there was a complete stop.

5. The proof being that plaintiff remained inside the cable-car until the conductor gave the bell signal to stop, then went out on the step waiting till the car should come to a full stop, there was no error in submitting to the jury, "under all the facts and circumstances in proof," "whether plaintiff [who was only 9 years old] had at the time sufficient capacity and discretion to understand" that the steps were a more dangerous place than the inside of the car, in connection with the instruction that to entitle plaintiff to recover they must find plaintiff "acting with reasonable care and diligence for one of his years."

6. There is no substantial difference in effect between the terms "ordinary care" and "reasonable care" as the latter was used in said instruction.

7. Under Rev. St. Mo. 1889, § 8925, declaring as "incompetent to testify" "a child under ten years of age who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly," a child under ten is presumptively incompetent, but the issue of competency is one for the court, whose ruling thereon will not be reversed unless it affirmatively appear that there has been an abuse of discretion.

8. The fact that the court permits a witness to testify, after objection made on account of his youth, is equivalent to a ruling that it is satisfied of witness' competency.

9. Under Rev. St. Mo. 1889, § 2302, providing that "no exception shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court," the question of excessive damages cannot be raised on appeal, where no objection was made in the trial court to the verdict.

Affirming 13 S. W. Rep. 889.

SHERWOOD, J., dissenting.

On rehearing. For former report, see 13 S. W. Rep. 889.

Johnson & Lucas, for appellant. John F. Waters and Crittenden, McDougal & Stiles, for respondent.

BARCLAY, J.

After a second argument and thorough reconsideration of this cause, we adhere to the conclusion first announced in it, that the judgment should be affirmed. The statement accompanying the opinion fully presents the salient facts involved, and such other matters in the record as may seem of any note will be mentioned incidentally later. At the time of his injury, the plaintiff was but nine years old. He was a passenger on a street-car operated by the defendant as part of a cable-railway line. His evidence tended to prove that he notified the conductor to stop at a certain street. As the car approached it, the conductor rang the bell. Plaintiff left the interior of the grip-car where he had been seated, and got upon the step of the platform, holding the hand rail. The conductor was on the platform. The car slackened speed, but while plaintiff, with one foot off the step, stood ready to descend, it suddenly started forward with a jerk, and ran some 20 or 30 yards. The jerk threw plaintiff off, and he fell in such a manner that his arm was run over by the wheels of the following car, inflicting serious injuries. It was the duty of defendant to plaintiff as its passenger, in the circumstances described, to stop the car a sufficient length of time to give him reasonable opportunity to alight in safety at the point of his destination. That he appeared to be of tender years was, moreover, a fact to be considered by defendant in discharging that duty. If a passenger is evidently crippled, infirm, or very young, the duty of the carrier towards him while alighting must be performed with due regard to such apparent condition. The testimony strongly tended to show a breach of the duty referred to. Defendant's instruction in the nature of a demurrer to the evidence was therefore properly refused, unless plaintiff be pronounced guilty of contributory negligence as a matter of law. The latter phase of the case will be discussed in connection with the other instructions.

2. There was no such variance between the petition and the proofs as would preclude submission of the cause to the jury. The allegation in the petition that defendant "stopped" the cars to permit plaintiff to alight, is mere matter of inducement. The actual negligence of defendant charged is in permitting the car on which plaintiff was a passenger "to be put in motion while plaintiff was in the act of leaving the car without giving him a reasonable time to alight safely therefrom, whereby he was thrown under the car," etc. There certainly was no failure of proof of these facts, and we think no substantial variance from the pleading. But, even if it were adjudged that a variance between the allegations and evidence existed, it would be a sufficient answer to defendant's claim for a reversal on that account that no affidavit was made in the trial court proving that defendant had thereby been misled to its prejudice in maintaining its defense upon the merits. Without such showing under our statutes, no mere variance can form the basis of a reversal. Rev. St. 1879, § 3565; Rev. St. 1889. § 2096; Olmstead v. Smith, (1885,) 87 Mo. 602.

3. The chief contention of defendant is that there is error in the rulings of the trial court upon the instructions. The first one given at plaintiff's instance, it is claimed, submitted to the jury a theory for recovery predicated on the actual stoppage of the car for an insufficient time, whereas the testimony disclosed that no stop at all was made. This criticism depends on a construction of the language of the court, which we think does not correctly interpret its meaning. The fact submitted to be found was that the defendant's servants "did not stop a sufficient length of time to permit the plaintiff, acting with reasonable care and diligence for one of his years, to alight in safety." This was supported by evidence that though the car, after the conductor's signal, came sufficiently near to a rest to induce plaintiff to get into position to step off, it did not in fact stop at all, but just then shot away with such violence as to throw him off. The instruction does not require the jury to find that the car stopped, but merely that, when it reached plaintiff's destination, it did not stop a sufficient time as described. The rule of law it stated was entirely correct, and abundantly sustained by the evidence. It is next asserted that the second instruction for plaintiff should not have been given. In considering its effect, however, as part of the law in the case, it should not be...