44 S.W. 778 (Mo. 1898), Barth v. Kansas City Elevated Railway Company

Citation:44 S.W. 778, 142 Mo. 535
Opinion Judge:Gantt, P. J.
Party Name:Barth v. Kansas City Elevated Railway Company, Appellant
Attorney:Pratt, Dana & Black and Frank Hagerman for appellant. Meservey, Pierce & German for respondent. Pratt, Dana & Black and Frank Hagerman for appellant in reply.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur. Sherwood and Burgess, JJ., concur.
Case Date:February 16, 1898
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 778

44 S.W. 778 (Mo. 1898)

142 Mo. 535

Barth

v.

Kansas City Elevated Railway Company, Appellant

Supreme Court of Missouri, Second Division

February 16, 1898

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

Pratt, Dana & Black and Frank Hagerman for appellant.

(1) The petition by the widow is fatally defective in showing that the death occurred more than six months prior to its filing, and in failing to show that there were no minor children or that she had sued within six months. Barker v. Railroad, 91 Mo. 86. (2) Plaintiff, upon the facts, should not recover. Solomon v. Railroad, 104 N.Y. 437; Evans v. Interstate Rapid Transit Co., 106 Mo. 594; Carroll v. Same, 107 Mo. 653. The proof, if tortured into making a case for the jury, was in support of the second count of the petition which was voluntarily dismissed. (3) Plaintiff's instructions 1 and 3 are erroneous, because: First. Issues were submitted as to negligence not pleaded. Waldhire v. Railroad, 71 Mo. 514; Hite v. Railroad, 130 Mo. 132; McManamee v. Railroad, 135 Mo. 440. Second. The relation of passenger and carrier did not exist. Schepers v. Railroad, 126 Mo. 665; Schaefer v. Railroad, 128 Mo. 71. Third. The proof, if it authorized any submission, supported the case made by the second count of the petition, which was withdrawn, and not the first count, under which these instructions were drawn. (4) Plaintiff's instruction 2 is erroneous because it submitted the issue of negligence as to the railing around the platform of the elevated station. Evans v. Interstate Rapid Transit Co., 106 Mo. 594, 599; Carroll v. Same, 107 Mo. 653; Allen v. Railroad, 64 Iowa 94. (5) Plaintiff's fourth instruction was erroneous. McGowan v. St. Louis Ore & Steel Co., 109 Mo. 518. (6) Defendant's instruction 4 was wrongfully refused. McGowan v. St. Louis Ore & Steel Co., 109 Mo. 518.

Meservey, Pierce & German for respondent.

(1) It was not nessary for the plaintiff to allege in her second amended petition that she had sued within six months, for the filing of the suit and the subsequent proceedings made of record rendered it unnecessary. Matters of which judicial notice is taken need not be stated in pleadings, and the court takes judicial notice of all matters which have been made of record in the same case. State v. Ulrich, 110 Mo. 350; State v. Jackson, 106 Mo. 174; State v. Daugherty, 106 Mo. 182; Railroad v. Stanley, 54 Ill.App. 215; R. S. 1889, sec. 2076; Bliss on Code Pl., secs. 177 and 199. (2) It is negligence per se for those operating a street railroad to start a car suddenly forward while persons are in the act of getting upon the same. Booth on Railway Law, sec. 348; Dougherty v. Railroad, 81 Mo. 325; Curtis v. Railroad, 27 Wis. 158. (3) It was for the jury to determine whether the act of the defendant company in so constructing the railing or guard as to leave the open space at the west end of the station platform was an act of negligence. King v. Railroad, 98 Mo. 235; O'Mellia v. Railroad, 115 Mo. 205; Fullerton v. Fordyce, 121 Mo. 1; Murphy v. Railroad, 115 Mo. 111; Railroad v. Tennant, 66 F. 922; Railroad v. Ives, 144 U.S. 408; Bethmann v. Railroad, 155 Mass. 352. The appellate court will not review the testimony to determine the sufficiency of the evidence unless appellant sets out the whole of it in his abstract. Craig v. Scudder, 98 Mo. 664; Nichols v. Nichols, 39 Mo.App. 291; Gunby v. Rodgers, 42 Mo.App. 465. (4) Plaintiff's fourth instruction was not erroneous. If counsel for defendant wished to have the elements of damage explained more fully, they should have offered proper instructions embodying their ideas. Browning v. Railroad, 124 Mo. 55; Boettger v. Iron Works, 124 Mo. 87; Haehl v. Railroad, 119 Mo. 325; Stoher v. Railroad, 91 Mo. 509; Tetherow v. Railroad, 98 Mo. 74; Haymaker v. Adams, 61 Mo.App. 581; McCarroll v. Kansas City, 64 Mo.App. 283; Railroad v. Kneirim, 48 Ill.App. 243. (5) Instruction 4 offered by defendant was properly refused. It was misleading and erroneous. It confined plaintiff's damages to the money actually lost, and omitted several elements of damage to which she was entitled. Grogan v. Broadway Foundry Co., 87 Mo. 321; Nagel v. Railroad, 75 Mo. 653; Parsons v. Railroad, 94 Mo. 286; Rains v. Railroad, 71 Mo. 164; Tilley v. Railroad, 29 N.Y. 252; Delaware, Etc., v. Jones, 128 Pa. St. 308; Petrie v. Railroad, 29 S.C. 303; Railroad v. Armstrong, 52 Pa. St. 282; Railroad v. Cutter, 19 Kan. 83; Railroad v. Stanley, 54 Ill.App. 215; Railroad v. Kneirim, 48 Ill.App. 243; Ewen v. Railroad, 38 Wis. 613.

Pratt, Dana & Black and Frank Hagerman for appellant in reply.

(1) Plaintiff's instruction as to damages falls within the condemnation of McGowan v. St. Louis Ore & Steel Co., 109 Mo. 518, and Goss v. Railroad, 50 Mo.App. 614. But counsel adopt the suggestions of the Court of Appeals in Haymaker v. Adams, 61 Mo.App. 581, and McCarroll v. Kansas City, 64 Mo.App. 283, that these cases have been overruled. This is not true in fact. All this court has ever said is that if it affirmatively appears that the damages actually equalled the amount recovered and defendant asked no affirmative instruction, the error was without prejudice. Dangerous as this doctrine is, it can not be applied to this case, the verdict being for $ 4,500 and the only proof was that deceased was seventy-two years old, a workman of a character not disclosed, and had at least one son who worked for himself and that expectancy of life of the deceased was but eight and sixteen hundredths years.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Page 779

[142 Mo. 540] Gantt, P. J.

This action is by the widow of Bartholomew Barth for damages resulting to her from his death, occasioned, as she alleges, by the negligence of the defendant, at its elevated station at Ninth and Mulberry streets in Kansas City, Missouri.

Plaintiff's husband was killed February 25, 1894, and this action was commenced March 22, 1894. The record shows that at the April term, 1894, defendant appeared and moved to dismiss the suit, which motion was overruled. On May 5, 1894, defendant demurred, but on June 16, 1894, withdrew its demurrer, and on the same day plaintiff filed an amended petition which defendant answered October 9, 1894, and afterward on December 12, 1894, the second amended petition, on which this cause was heard, was filed. It contained two counts, but as the second was withdrawn, the first count only remains as the basis of the judgment recovered. The first count avers in substance that plaintiff, on the twenty-fifth of February, 1894, was the lawful wife of Bartholomew Barth and on that day defendant was a railway corporation organized under the laws of Kansas, and was engaged in operating an elevated electric street railway for the carriage of passengers for hire between Kansas City, Kansas, and Kansas City, [142 Mo. 541] Missouri; that in order to patronize said railway, passengers were required to ascend to its stations by means of steps and go upon elevated platforms in order to get into its cars; that the platform and station at Ninth and Mulberry streets is about twenty to thirty feet above the surface of the ground; that on the west end of said platform defendant had erected a fence or guard railing to protect persons patronizing its road from falling off of said platform, but had so negligently or carelessly constructed it that it left a space of about three feet between the track of said company and the south end of said fence or railing, thus rendering said platform exceedingly dangerous to its patrons making use thereof to enter its trains; that it had permitted said platform to remain in this condition for a year prior to February 25, 1894, and for a time sufficient for defendant to have ascertained its dangerous condition by the exercise of ordinary care. The petition then charges the facts attending the death of plaintiff's husband in these words:

"Plaintiff further states, for the purpose of admitting passengers to the cars owned and operated on its said railroad as aforesaid, steps are supplied on the right hand side of the rear platform, by the aid of which passengers are invited and are accustomed to go upon the platform and into said cars. That each of said cars and the particular one hereinafter mentioned is provided with a gate which is intended to guard against accidents and to prevent passengers from falling from the cars while in motion; that the rules of the defendant company provided that the gates of the cars should be kept closed while the cars were running over the elevated structure and that the cars should not be started until passengers were fairly landed or received on the car. That it was the duty of the agents, employees and servants of defendant to keep said gates [142 Mo. 542] closed while running said cars over the elevated structure, and they were only accustomed to be open while the cars were stopped for the admission of passengers at the several stations along said railroad.

"Plaintiff states that, to wit, on said twenty-fifth day of February, 1894, the husband of plaintiff, Bartholomew Barth, entered the station of said defendant company at the corner of Ninth and Mulberry streets as aforesaid for the purpose of taking a trip west as a passenger on one of defendant's cars. Plaintiff states that the destination of her said husband, Bartholomew Barth, was his home in Kansas City, Kansas, near one of the terminal stations of said defendant company in said Kansas City, Kansas, and that upon the arrival at said station of the first car of said railway conducted, maintained and operated by said defendant and so propelled by the servants, agents and employees of defendant's company, and after said car had been stopped and the...

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