Bartley v. Metropolitan St. Ry. Co.

• Decision Date: 15 February 1899
• Citation: 148 Mo. 124,49 S.W. 840
• Parties: BARTLEY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

49 S.W. 840

148 Mo. 124

BARTLEY v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 15, 1899.

CABLE CARS — NEGLIGENCE OF GRIPMAN — JERKS — IMPUTED NEGLIGENCE — NEW TRIALS.

1. A complaint setting forth as the negligence the act of the gripman of a street car in negligently operating the grip iron so as to cause the car to jerk with such force that it broke plaintiff's hold, and threw him on the street with great force, limits plaintiff to proof of the specific negligence averred.

2. Evidence that plaintiff was thrown from a cable car by a jerk of the car caused by some action of the gripman, without showing what the gripman did, or how he caused the jerk, or that he caused it at all, is not prima facie sufficient to submit to the jury the question of the gripman's negligence.

3. The fact that a cable car gave a sudden jerk, throwing plaintiff from the running board, is, per se, insufficient to make the company liable.

4. It appearing that jerks in the running of cable cars are unavoidable, because of the slack in the rope, negligence will not be imputed to the company merely because of such a jerk.

5. A verdict rendered for the right party, though under erroneous instructions, should not be disturbed by the trial court.

Appeal from circuit court, Jackson county; C. L. Dobson, Judge.

Action by Samuel W. Bartley against the Metropolitan Street-Railway Company. From an order granting plaintiff a new trial, defendant appeals. Reversed.

Action to recover $25,000 damages for personal injuries. The material allegations of the petition are that defendant owns and operates a street railway in Kansas City, Mo., which is operated "by means of an endless cable running underground, driven by steam force, the cars being attached to said cable by a device called a `grip iron,' which may be tightened and loosened on said rope in such manner as to cause the cars to stop steadily or with a sudden jerk in starting or while running, depending altogether upon the care used by defendant's servant in charge thereof, known as the `gripman'"; that on the 24th of December, 1893, about 7 o'clock in the morning, plaintiff became a passenger on one of defendant's train of cars, by boarding the same at the intersection of Twelfth and Jefferson streets, for the purpose of going to his place of business; that a great number of people patronize defendant's road in the morning hours, and, although it was defendant's duty to furnish cars enough to reasonably accommodate the traveling public, the defendant "ran so few cars, and at such long intervals, at the date aforesaid, that the cars were so crowded that it was impossible for plaintiff to get a seat, and defendant permitted plaintiff, with many other passengers, to ride on the running board at the side of the car, where he was compelled to stand and hold onto the posts of said car"; that it was defendant's duty, while its cars were so loaded, to so operate them, in a reasonably careful and prudent manner, as to prevent throwing its passengers off; that after plaintiff boarded said car and was standing and holding onto said posts, and had been seen by the gripman, the "said gripman so carelessly and negligently operated said grip iron as to cause said car to jerk and lurch with such force that it broke the plaintiff's hold, and threw him on the paved street with great force," injuring him so severely that his mind is affected, and he is permanently disabled. The defendant filed a verified answer, setting up (1) a general denial; (2) a plea of contributory negligence; (3) a release by plaintiff, in consideration of $20, of all claims and demands arising out of the accident, and specifying that no attempt should be made by plaintiff to set aside the release, but, if any such attempt should be made, the plaintiff should deposit the $20 with the clerk of the circuit court of Jackson county, as a condition precedent to any such attempt to set aside the release, and that no tender or offer to return the $20 was ever made by plaintiff. The unverified reply of plaintiff denied (1) that the release was the release of the plaintiff, because at the date of it plaintiff "had just come out of the hospital, was yet ailing, and had not recovered from his injuries, and was unfit to be talked to on any matter of business, on account of his injuries and the effect it had on his mind, and that he was mentally incapacitated from contracting," and therefore "he is not bound by said release." (2) That defendant sent two of its special agents to plaintiff, who told him the defendant had sent him $20, "to pay on his hospital dues, and asked that he sign a receipt for the same; stating at the same time that the company would settle with him for his injury as soon as he was able to be about. Plaintiff at this time was, on account of his injury, unable to read or do business of any kind, when said agent did then and there falsely and fraudulently read to plaintiff what pretended to be a simple receipt for twenty dollars, and did thereby obtain the signature of plaintiff to the pretended release by so falsely reading the same, and inducing plaintiff to believe he was only signing and executing a simple receipt for twenty dollars, when in truth and in fact they were at the time falsely and fraudulently obtaining his signature to the pretended release"; and therefore he says the release or contract is not his, and he is not bound by it. At the beginning of the trial the defendant objected to the admission of any evidence, on the ground that the defendant was entitled to a judgment because the reply is a departure from the petition, because the matters set up in the reply cannot be set up by way of reply, because the matters set up in the reply are not cognizable at law, and because such matters constitute no reason for avoiding the release. The court overruled the objection, and the defendant excepted.

Plaintiff's version of the accident is that about 7 o'clock on Sunday morning, December 24, 1893, at Twelfth and Jefferson streets, in Kansas City, he boarded the grip car of one of defendant's trains of cable cars, for the purpose of going to the saloon at No. 1519 Bell street, where he worked; that he got on the "running board" or "foot board," as it is convertibly designated, of the grip car, at about the center of the car; that the car was full, except the first or second double seat from the front of the car, which was occupied only by John Watkins, a friend of his; that he stood on the running board, and held onto one of the posts or uprights, intending to so stand until he reached his destination, and made no effort to go forward and take a seat on the double seat, where his friend Watkins was; that the car had nearly stopped when he got on the car, and, after he got on, that the car stopped completely; that he did not know whether the trailer, which was a closed car, was full or not; that the car was started again, and had gone about 30 or 40 feet, and had attained the full speed of the cable rope, when "it kind of stopped, or something, — gave a lurch. I don't quite understand how it was, but it gave a lurch, or something, the nature of which I don't understand"; that he does not understand what caused it. "Ques. Well, what did you notice on the part of the gripman, in the way of his doing anything, at the time of that jerk you speak of?" "Ans. Well, it was some action of his, but what it was I can't say positively. He did something, but whether he was running faster than the speed of the rope, or not, I don't know, but I think he was. I know he caught the rope with a quick jerk, or made a motion with his grip like as if he was, and the jerk came right away, and that was the last I remembered." The plaintiff's hold on the upright or post was loosened, and he fell on the pavement, and was severely injured. No one else on the car felt any unusual jerk or lurch. George Price, a passenger on the train, and a witness for plaintiff, who was seated on the side of the grip car which the plaintiff boarded, and just behind the gripman, said that plaintiff got on the grip car about where he was sitting; that there was a vacant seat just ahead of him, and another just behind him; that plaintiff was going along on the running board towards the vacant seat ahead of him, when he fell off; that the car had moved about half a block after plaintiff boarded it before he fell off. "Ques. Yes, sir; what caused him to fall, if you know? Ans. Well, I don't know of anything, unless it was a little kind of sharp jerk that the car gave. * * * Ques. I will get you to state if, at the time of this jar or shock that you speak of, whether or not at that time you noticed the gripman, to observe what he was doing, — whether or not he was jerking up or tightening up on his grip. Ans. No, sir; he was not jerking, but he had hold of the rod or grip. Ques. What caused the jerk, if you know? Ans. I don't know, sir. Ques. There was a jerk? Ans. Yes, sir; a jerk or jar. Ques. Was it very perceptible? Ans. No, sir; not very, only there was a kind of a jerk. * * * Ques. (on cross-examination). You have ridden on these cars, haven't you, when the slack — what is called the `slack in the rope' — came and went? Ans. Yes, sir. Ques. Well, was it that — the slack in the rope — that you struck at that particular time? Ans. Yes, sir. Ques. That was what caused the car to give the lurch that it gave? Ans. I think so. Ques. There is no other way of accounting for it, from what you saw? Ans. That is what I thought it was. Ques. Well, do you say it was not the gripman jerking on the grip that caused it? Ans. No, sir; I don't think that he did it. Ques. You did not see the gripman make any jerk — pull or jerk on the lever that works the grip on the cable — that would account for this? Ans. I think not." Plaintiff had been riding on defendant's cars nearly every morning and evening for nearly two years previous to the...