Hibbler v. Kansas City Railways Co.

• Decision Date: 09 February 1922
• Citation: 237 S.W. 1014,292 Mo. 14
• Parties: LAURA M. HIBBLER v. KANSAS CITY RAILWAYS COMPANY, Appellant
• Court: Missouri Supreme Court

237 S.W. 1014

292 Mo. 14

LAURA M. HIBBLER v. KANSAS CITY RAILWAYS COMPANY, Appellant

Supreme Court of Missouri

February 9, 1922

Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.

Reversed and remanded.

E. E Ball, L. T. Dryden and Chas. N. Sadler for appellant.

(1) The court erred in overruling appellant's demurrer to the evidence at the close of the respondent's case and at the close of the whole case. Stepp v. Ry. Co., 85 Mo 229; Jackson v. Butler, 249 Mo. 342; Hight v Bakery Co., 168 Mo.App. 431; Gunn v. United Rys. 270 Mo. 517. (2) The court erred in permitting the respondent, over appellant's objection, and exception, to offer evidence of an operation performed upon her in March, 1919. Hall v. Coal Co., 260 Mo. 351; Johnson v. Frisco Ry., 192 Mo.App. 8; Shafer v. Harvey, 192 Mo.App. 502; Martin v. Rys. Co., 204 S.W. 589; Wesner v. Railroad, 177 Mo.App. 117; Baldwin v. Rys. Co., 218 S.W. 955. (3) The court erred in permitting the respondent, over the objection and exception of the appellant, to show a condition of the respondent, resembling erysipelas or an infection. Authorities under point 2. (4) Appellant properly saved for review, by this court, the action of the trial court in overruling appellant's objections to the admission of evidence as to an operation upon the respondent, and also as to erysipelas. Section 1452, R. S. 1919; McDonald v. Ry. Co., 165 Mo.App. 75; Hall v. Coal Co., 260 Mo. 370; Moellman v. Lumber Co., 134 Mo.App. 492; Slaughter v. Railroad, 116 Mo. 275; Gold v. Jewelry Co., 165 Mo.App. 161; Hegberg v. Ry. Co., 164 Mo.App. 546; Hydraulic Brick Co. v. Green, 177 Mo.App. 316; Spaulding v. City of Edina, 122 Mo.App. 69; Bailey v. Kansas City, 189 Mo. 512; Mahany v. Rys. Co., 228 S.W. 821; Bergfeld v. Dunham, 202 S.W. 253; Simms v. Dunham, 203 S.W. 652; Boles v. Dunham, 203 S.W. 408; Murdock v. Dunham, 206 S.W. 915; Kirn v. Harvey, 208 S.W. 479; State ex rel. v. Ellison, 270 Mo. 653; Beave v. Transit Co., 212 Mo. 331; Fink v. United Rys. Co., 219 S.W. 679; Miller v. Rice-Stix Dry Goods Co., 223 S.W. 437; Johnson v. Rys. Co., 178 S.W. 239; Smith v. Rys. Co., 227 S.W. 866; Martin v. Rys. Co., 204 S.W. 589; Cooley v. Rys. Co., 170 Mo.App. 42.

Prince, Harris, Hamilton & Beery for respondent.

(1) The court committed no error in overruling defendant's demurrer at the close of plaintiff's case, nor in overruling the same at the close of the whole case. Campbell v. Sub. Ry. Co., 175 Mo. 175; Lamb v. Mo. Pac. Ry. Co., 147 Mo. 186; Erickson v. Ry. Co., 171 Mo. 659; Weller v. Ry. Co., 120 Mo. 648; Gratiot v. Mo. Pac. Ry. Co., 116 Mo. 466. (2) The admission of evidence as to an operation and a condition resembling erysipelas does not constitute reversible error. Seckinger v. Mfg. Co., 129 Mo. 603; McDonald v. Met. St. Ry. Co., 219 Mo. 480; Thomas v. Ry. Co., 187 Mo.App. 425; Cooley v. Elev. Ry. Co., 170 Mo.App. 42; Lyons v. Met. St. Ry. Co., 253 Mo. 143; Fledderman v. Transit Co., 134 Mo.App. 205; Thompson v. Ry. Co., 111 Mo.App. 465; Spart v. Ry. Co., 213 Mo. 517; Brown v. St. Joseph, 184 Mo.App. 667; Wilkins v. Ry. Co., 101 Mo. 93; Hall v. Mfg. Co., 260 Mo. 351; Doster v. Ry. Co., 158 S.W. 441; Janos v. Levee Dist., 183 S.W. 700. (3) Even though evidence of operation and erysipelas was erroneously admitted, it amounted to no more than a variance, which has not been properly preserved for appellate review. Sec. 1846, R. S. 1909; Mellor v. Railroad Co., 105 Mo. 471; Cossitt v. Ry. Co., 224 Mo. 97, 110; Fisher v. Realty Co., 159 Mo. 562. (4) Evidence of septicemia and of surgical operation was, at most, but a variance which was rendered immaterial by defendant's failure to file affidavit showing in what respect it had been misled as per Sec. 1272, R. S. 1919. Reeves v. Larkin, 19 Mo. 192; Fischer v. Max, 49 Mo. 405; More v. King, 178 S.W. 124; Newton v. Harvey, 202 S.W. 249; Lane v. Rys. Co., 228 S.W. 872; Cossitt v. Railway, 224 Mo. 97. (5) Allegations of sickness and impairment of functions of female organs authorize proof of any sickness or any impairment traceable proximately to the occurrence. Fledderman v. Transit Co., 134 Mo.App. 199; Hall v. Mfg. Co., 260 Mo. 351. (6) Evidence of the surgical operation upon plaintiff was admissible for the additional purpose of corroborating the fact of pelvic trouble, and also of the permanency of her impairment. Brown v. St. Joseph, 184 Mo.App. 667; Lyons v. Met. St. Ry. Co., 253 Mo. 143. (7) Defendant having introduced evidence tending to show that the condition in question could not have resulted from violence and having submitted an instruction thereon, is estopped from demanding a retrial of that issue. Wise v. Joplin Co., 85 Mo. 178, 188; Berkson v. Railway, 144 Mo. 211; Mitchell v. Brown, 190 S.W. 354; Gayle v. Foundry Co., 177 Mo. 427; Boatmen's Bank v. Trust Co., 205 S.W. 629. (8) The evidence in question being competent for one purpose, it became the duty of defendant to ask an instruction limiting its application. Hitt v. Hitt, 150 Mo.App. 631; Sotevier v. Railway, 203 Mo. 702; Wilkins v. Railway, 101 Mo. 93. (9) The word "impairment" as it has been judicially defined, includes total loss or destruction. Goodloe v. Met., 120 Mo.App. 194; State v. Krahmer, 117 N.W. 873; Blackmore v. Cooper, 106 N.W. 566.

WALKER, J. David E. Blair, J., concurs in paragraphs 1, 2, 3 and 4, and dissents as to paragraph 5 and result; Woodson, J., absent.

OPINION

In Banc.

WALKER J.

-- The plaintiff, in an action for damages for injuries alleged to have been received by her in alighting from one of defendant's street cars, recovered judgment for eleven thousand dollars. From this judgment the defendant appealed.

The injury occurred in October, 1917, at about nine o'clock p. m. Plaintiff became a passenger on one of defendant's cars operating upon Fifteenth Street in Kansas City. Near the intersection of Fifteenth and Elmwood Streets, she pressed the signal button indicating her desire to alight at Elmwood. Her evidence tended to show that the car slowed down, and, for the purpose of alighting, she approached the front door, the proper place of exit. The door, controlled by the motorman, was opened by him to allow passengers to alight and to board the car, and was kept closed while the car was in motion. As she approached the door it was opened; she stepped down to the street while the car was still in motion, to the extent that it ran its full length from where she alighted until it stopped. She thought it had stopped, and on account of the motion she fell on her side and received serious injuries, the nature of which will be noticed later.

The petition alleges that it was the custom of passengers on all of the defendant's cars to alight at the front exit; they were so directed by a printed sign in the cars; and at the time of the injury and long prior thereto, the defendant had promulgated Rules 24 and 5, which were introduced in evidence, as follows:

"No. 24. Starting. -- Motorman will never start car without signal from conductor. Front exit door will be closed before starting, and will not be opened until car comes to a complete stop. Conductors will keep rear door closed until car comes to full stop. Folding doors on all cars so equipped will be closed before signal to start is given.

"No. 5. The motorman is held responsible for the safety of passengers boarding or leaving cars via the front exit."

The negligence of the defendant is thus alleged: "The defendant carelessly or negligently caused or permitted the said front exit door to be opened, thereby causing plaintiff to understand and believe the said car was at a standstill, and that it was safe for plaintiff to alight from said car at said time and place; and by reason of the facts aforesaid carelessly and negligently invited plaintiff to alight from said car at said time and place."

The plaintiff testified that after she opened the folding doors to go into the vestibule, "the motorman opened the door and I walked out."

As to whether she actually saw the motorman open the door, she testified:

"Q. Did you see the motorman open the door, or did you just see the door open? A. Well, he had his hand up there on the --

"Q. (Interrupting) Well now, you were right there. What I am asking you, do you testify that the motorman opened that door, or that the door was opened by somebody? A. Well, the door was opened.

"Q. You don't know who opened it, as a matter of fact? A. I don't know who opened it.

"Q. And how fast do you think the car was going when you stepped off of it? A. I don't know how fast it was going. Anyway, it went almost the length of the car ahead of me."

She further testified that at the front end of all the cars, she had seen a notice requesting passengers to leave by the front entrance; until that night she never had known of a motorman opening the door until the car stopped, and she thought the car had stopped or she would not have stepped off.

The defendant offered the deposition of the motorman in charge of the car, who testified that someone he did not know, without his permission, opened the door of the car, and the plaintiff stepped off while the car was in motion.

Both sides presented evidence of physicians who testified as to the nature of plaintiff's injuries.

I. The defendant offered a demurrer to the evidence which was overruled, for which error is assigned. It is contended that the plaintiff should have been nonsuited because, as is alleged, her own negligence contributed to the injury.

A passenger is not negligent per se so as to prevent recovery for an injury received in alighting from or boarding a moving car merely because the car was moving. That is conceded, But the defendant claims that the plaintiff was negligent in failing to discover that the...