48 S.W.2d 25 (Mo.App. 1932), Caley v. Kansas City

Citation:48 S.W.2d 25, 226 Mo.App. 934
Opinion Judge:BLAND, J.
Party Name:ANNIE R. CALEY, RESPONDENT, v. KANSAS CITY, MISSOURI & KANSAS CITY PUBLIC SERVICE CO., APPELLANTS
Attorney:Benj. W. Grover for respondent. George Kingsley and Marcy K. Brown, Jr., for City. Watson, Gage, Ess, Groner & Barnett for appellant, City Public Service Company.
Case Date:February 01, 1932
Court:Court of Appeals of Missouri

Page 25

48 S.W.2d 25 (Mo.App. 1932)

226 Mo.App. 934

ANNIE R. CALEY, RESPONDENT,

v.

KANSAS CITY, MISSOURI & KANSAS CITY PUBLIC SERVICE CO., APPELLANTS

Court of Appeals of Missouri, Kansas City

February 1, 1932

Appeal from the Circuit Court of Jackson County.--Hon. Thos. J. Seehorn, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Benj. W. Grover for respondent.

George Kingsley and Marcy K. Brown, Jr., for City.

Watson, Gage, Ess, Groner & Barnett for appellant, City Public Service Company.

OPINION

[226 Mo.App. 935] BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3500, and defendants have appealed.

The facts show that on May 12, 1928, while plaintiff was going to her work in the down town portion of Kansas City, she was injured by stepping in a hole when alighting from a street car. The car was being operated by the defendant, Kansas City Public Service Company (hereinafter called the street car company). The street car in question was headed south on McGee street. The car was stopped by the operator thereof on the north side of 11th street, a street intersecting McGee street, for the purpose of allowing passengers to alight.

The car in question was what is known as a "one man" car. The front platform was divided in the middle with an upright iron rod

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called, in the testimony a "stanchion." The passageway between the stanchion and the front end of the vestibule of the car was for persons boarding the car and the space between the stanchion and the body of the car was for those alighting. The vestibule was enclosed by folding doors. When persons desired to alight the operator of the car would open the doors and the passengers would step down to the step and thence to the ground. The step was normally twelve to sixteen inches above the ground, that is if there was no hole in the ground surface below the step.

When the car stopped plaintiff arose from her seat and went to the front platform and found the doors closed. She stood between the stanchion and the body of the car until the operator opened the doors. She then looked out to see if any automobile was in the vicinity that might interfere with her alighting and, finding none, she stepped her right foot down on the step of the car with her face toward the west or in the direction in which she was alighting, with her hand upon the stanchion. Before stepping her left foot to the ground she looked down. With reference to the matter of looking, she testified: "I looked before I step always, just like you would or anyone would look where they were stepping." She testified that she did not see any hole; that the surface of the street appeared not to have any holes in it, so she placed her left foot upon the ground. Her ankle turned and she fell prone upon the street, resulting in a severe sprain to her ankle. When she was assisted to her feet she noticed there was a large hole in the pavement immediately in front of the car step. The evidence shows that this hole was about three feet wide, five feet long and four to six inches in depth.

[226 Mo.App. 936] The street was paved with asphalt but an excavation had been made by the Gas Company which had either not been entirely filled up or the loose rock with which it had been filled had been partially thrown out by the wheels of motor vehicles, leaving the hole in question. Plaintiff stepped on the edge of the hole near the car tracks. She testified that when she stepped, "It just sunk down;" that she "got on the edge of that and I went down with it." There is no evidence as to the location of the east edge of the hole with respect to the nearest car track, but a photograph introduced in evidence by plaintiff, which was taken four days after she was injured, indicates that the edge of the hole where she stepped was very near thereto. Plaintiff testified that the motorman stopped the car "right over the hole where I stepped off." It was admitted that the overhang of the car was from eighteen to twenty inches.

The evidence shows that the hole had been there for at least two months. The motorman, who testified for the street car company, stated that he saw the hole a month prior to the time plaintiff fell but that at that time he stopped the car a few feet further south than he did at the time in question.

We will first take up the assignments of error made by the street car company.

It is insisted that the court erred in refusing to give the instruction of the street car company in the nature of a demurrer to the evidence. In this connection it is claimed that it was not responsible for the condition of the street, having no control thereof, and that the defect in the street was of such an ordinary and trivial nature as not to render it negligent in having stopped the car there.

While it is true that the street car company had no control over the street and there was no duty upon its part to repair the same and, in this respect, there is a difference between the duty of a street car company and that of a railroad company, which furnishes places for the discharge of its passengers, yet, a street car company is under the duty to exercise the highest degree of care in selecting a reasonably safe place for the discharge of its passengers. In other words, it must exercise that care in ascertaining whether or not the place it discharges its passengers is reasonably safe. [Fillingham v. St. Louis Transit Co., 102 Mo.App. 573, 77 S.W. 314; MacDonald v. St. Louis Transit Co., 108 Mo.App. 374, 83 S.W. 1001; Sweet v. Louisville Ry. Co., 113 Ky. 15, 67 S.W. 4; Stewart v. St. P. City Ry. Co., 78 Minn. 85, 80 N.W. 854; Richmond City Ry. Co. v. Scott, 86 Va. 902, 11 S.E. 404; Slocum v. Peoria Ry. Co., 179 Ill.App. 317; 10 C. J., pp. 915, 916; Melton v. Birmingham Ry., etc. (and note), 16 L.R.A. (N. S.) 467.]

The street car company seems to think that it has discharged its full duty unless it stops its car so that passengers must alight in a [226 Mo.App. 937] "situation bristling with glaring and obvious possibilities of harm" to the passengers; that the defect must be a "glaring or manifestly dangerous one, such as an open excavation."

We are unable to agree with this contention of the street car company. The rule is that if the defect in the street is such a dangerous one as likely to result in injury to a passenger in alighting and the passenger is injured while so alighting, as was plaintiff in the case at bar, the street car company is liable. The duty of the company is to stop its car at a point beyond or short of the defect in the street or to warn the passenger of its presence unless its presence is glaringly obvious. [See cases last cited.] There is no rule found in the authorities requiring that the defect or danger must be glaring in order to render the carrier liable. In the case of Sweet v. Ry. Co., supra, it was held that a depression two or three feet in length and six inches deep at the edge of defendant's track, in a macadam road, and so near the track that one stepping from the car would be likely to step

Page 27

into the depression is not a reasonably safe place to discharge passengers.

In the case of Carroll v. N. O. Ry. & Light Co., 61 So. 752, cited by the street car company, plaintiff's husband caused the conductor of the car to permit her to alight just before the car reached the regular stopping place, which was safe. She was not hurt in alighting but by stepping into a depression while walking away from the car. It was held that she should have waited until the car arrived at the regular stopping place. The street was unpaved, "in which ruts, holes, and depressions might be expected in the winter season." In the Carroll case the street was not paved, and the other facts were entirely dissimilar.

In Lynch v. St. Louis Transit Co., 102 Mo.App. 630, 77 S.W. 100, the car was stopped where the street was unmade, which must have been plain to all. There was a low embankment of easy grade extending from the railway track to a level some six or seven feet away. At the point where plaintiff got off the car there was a sort of rough shelf or step formed in the side of the slope, and a person stepping from the car-step would naturally put his foot down on a nearly horizontal but not entirely smooth surface. The evidence was that the spot where plaintiff stepped looked "to be perfectly safe." At page 643 of the opinion the court said: "A careful study of the evidence in the present case discloses nothing tending to prove that the bank of dirt on which plaintiff stepped presented any perceivable difficulty or hazard." At page 642 the court said: "The risk was of a trifling character and no greater than is constantly encountered with impunity by multitudes of men every day." At page 641 the court said: "One may slip or wrench a muscle by stepping on a slightly [226 Mo.App. 938] uneven surface, small pebble, or other body in the street at any point; but the occurrence of such an accident does not necessarily authorize the inference of negligence on the part of any one." The Lynch case is wholly unlike the case at bar.

The street car company insists that plaintiff's photograph shows that the place selected for plaintiff to alight was reasonably safe. But we cannot so say, as a matter of law, even from an examination of the photograph submitted to us. Aside from this, it may be inferred from the evidence that the hole was partially filled up with chat or small crushed rock between the time plaintiff fell and the time the photograph was taken. Plaintiff's photographer who measured the hole when he took the picture stated that the hole was from four to five inches in depth. The street car...

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