Allen v. Dunham

• Decision Date: 01 March 1915
• Citation: 175 S.W. 135,188 Mo.App. 193
• Parties: ALICE E. ALLEN, Respondent, v. ROBERT J. DUNHAM and FORD F. HARVEY, Receivers of the METROPOLITAN STREET RAILWAY COMPANY, Appellants
• Court: Kansas Court of Appeals

175 S.W. 135

188 Mo.App. 193

ALICE E. ALLEN, Respondent, v. ROBERT J. DUNHAM and FORD F. HARVEY, Receivers of the METROPOLITAN STREET RAILWAY COMPANY, Appellants

Court of Appeals of Missouri, Kansas City

March 1, 1915

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

John H Lucas and Broaddus & Crow for appellants.

(1) The plaintiff having alleged acts of negligence, the burden was clearly on her to sustain same by substantial evidence. Gibler v. Railroad, 148 Mo.App. 475; Bean v Transit Co., 212 Mo. 331. (2) Before plaintiff can recover in this case she must show that defendants stopped its car in a violent, unusual and negligent manner thereby causing Mr. Allen to fall, and in her testimony the plaintiff shows that there was no unusual, unnecessary, violent or unexpected stop. If the movement of the car was usual necessary and ordinary, certainly plaintiff could not recover, or if the starting of the car caused the injury a like result follows. Bartley v. Railroad, 148 Mo. 124; Patrums v. Railroad, 168 S.W. 622; Pryor v. Railroad, 85 App. 367. The circumstances of each case must be considered by the court in determining whether plaintiff can recover. Brady v. Railroad, 140 Mo.App. 425. (3) Instruction number one, second paragraph, expressly authorizes the jury to return a verdict for slight negligence and emphasizes the right of the jury so to do in the last sentence of instruction number one which was clearly erroneous there being no degrees of negligence in this State. This instruction for this reason was clearly erroneous and prejudicial to defendants. Young v. Railroad, 227 Mo. 307, 332; Magrane v. Railroad, 183 Mo. 119- 127.

Park & Brown for respondent.

(1) The petition alleges general negligence in the abrupt and violent stop of the car. Macdonald v. Railroad, 219 Mo. 468, 474, 487; Maier v. Railroad, 176 Mo.App. 29, 34. (2) Proof of the violent stop and simultaneous injury make a prima-facie case which defendant must explain. Macdonald v. Railroad, 219 Mo. 487; Maier v. Railroad, 176 Mo.App. 35. (3) The stop was unusual, as quick as could be made, and "afforded reasonable evidence that the accident arose from want of care." Agnew v. Railroad, 165 S.W. 1110 (this court); Bell v. Railroad, 125 Mo.App. 660, 666; Och v. Railroad, 130 Mo. 27, 51; Dougherty v. Railroad, 81 Mo. 325, 329.

OPINION

JOHNSON, J.

This is an action under section 5425, Revised Statutes 1909, and was begun in the circuit court of Jackson county, August 20, 1913, by the widow of Elijah R. Allen, deceased, to recover $ 10,000 for his death which she alleges was caused by the negligence of defendants in the operation of a street car on the Troost avenue line in Kansas City. The petition alleges that Allen died June 30, 1913, from injuries received June 11, 1912, while a passenger on the street car and that "said car was negligently, unskillfully and in utter disregard of duty, run, conducted, managed and operated by the agents and servants of defendants in that said car was caused or permitted to come to an unusually abrupt, violent and unexpected stop" and that "the said husband of plaintiff was thrown violently to the floor of said car thereby breaking . . . and dislocating his right hip and the joint thereof and otherwise fatally wounding him."

The answer is a general denial and plea of contributory negligence. At the time of the death of Allen an action on the same cause, brought by him in the circuit court of Jackson county, was pending and afterward was revived in the name of plaintiff as the executrix of his last will. The parties to the two cases by their respective attorneys entered into and filed a stipulation in which they agreed "that said causes may be tried at the same time before the same judge and jury, that the testimony taken in either of said causes may be used upon the trial in the other of said causes, in other words, that all testimony taken in one case may be used with like effect in the other case, subject to all objections as to competency and relevancy and that said causes may be reset for Monday, November 17, 1913, and both causes tried at that time before the same judge and jury."

Pursuant to this stipulation the court, with the aid of a jury, proceeded to try both cases but at the beginning of the trial, counsel for defendants objected to the introduction of any evidence for the reason that the petitions were so repugnant as to be mutually destructive. An essential element of the cause alleged in the petition of the executrix was that the death of her husband was not caused by the injury, while the opposite fact was indispensable to a recovery in the second action prosecuted by her as the widow of the deceased, under section 5425, Revised Statutes 1909.

The objection was overruled and defendants then filed a motion, which also was overruled, that plaintiff be required to elect upon which cause she would proceed.

At the close of the evidence of plaintiff a motion to elect was presented again, after defendants demurrers to the evidence were overruled, and was sustained, whereupon counsel for plaintiff announced that they would proceed with the widow's case and then took an involuntary nonsuit in the case of the executrix, with leave to move to set the same aside. Defendants then moved that the jury be discharged on the ground that they had been prejudiced by evidence admitted in support of the abandoned action which was irrelevant to the issues in the widow's case and highly prejudicial to rights of defendants. This motion was overruled and the trial of the widow's case proceeded.

At the close of all the evidence defendants again requested the giving of a peremptory instruction but the request was refused and the cause submitted to the jury. A verdict for plaintiff in the sum of $ 3500 was returned and after their motion for a new trial was overruled defendants appealed.

The material facts relating to the injury and subsequent death of Allen are as follows: He was eighty years old, in good health, and "spry" for one of his years. He lived in Fairfield, Iowa, and came to Kansas City to visit his son who, with his wife, met him at the Union Station. They boarded a street car and transferred to a Troost avenue car, but in some way, Allen and his daughter became separated from his son at the transfer point and the latter boarded a car following that on which they became passengers. They seated themselves near the rear vestibule in a seat facing the aisle, and when the car approached Fourteenth street where they were to alight, Mrs. Allen gave the signal to stop and arose from her seat before the car stopped. Allen waited until the car came to a full stop before rising from his seat. Supported on one side by his daughter-in-law and on the other by a cane, he proceeded to leave the car when the motorman started it forward in obedience to a signal from the conductor. Mrs. Allen called to the conductor to stop and immediately he gave the ordinary stop signal, followed by a signal for an emergency stop and the motorman stopped the car at once. The old man who was standing in the aisle near the rear exit was over-thrown either by the starting or the stopping of the car, or by both, and fell heavily to the floor, dislocating his right hip and fracturing a bone at the joint. His injury was so severe it caused his death after a year of suffering.

We have quoted the allegation in the petition that the cause of his fall was an "unusually abrupt, violent and unexpected stop" of the car. Counsel for defendants contend that the evidence wholly fails to support this charge but to the contrary shows that the fall was caused by the starting of the car, and, therefore, occurred before the stopping could have operated even as a contributing cause. The deposition of Allen, taken sometime after the injury, was read in evidence, but his testimony relating to the precise cause of his injury is not clear and as a whole leaves the impression that his percipient powers and memory had been greatly impaired by senility and acute suffering. Obviously his version of the occurrence is not sufficiently accurate to be accorded much strength in our consideration of the demurrer to the evidence.

The testimony of Mrs. Allen shows that the events of the starting of the car while she and her father-in-law were proceeding towards the vestibule, her call to the conductor, his signal to stop, the stop and the fall of the old man, occurred in a moment, making it difficult for her to distinguish the force which was the most prominent factor in causing the fall. It does not appear that the starting of the car was accompanied by a jerk, but of the subsequent stop she testified "the car stopped with a jerk and it was quite a jostle at that time . . . it stopped with a jerk, it was jerking. Q. What was the next thing you saw? A. Father was on the floor . . . his head was to the northeast (the car was going south) he was on the right side." On cross-examination, counsel for defendants endeavored to extract from her the concession that the fall occurred before the final stop of the car. She would not say so, and to every such question returned the answer that when the car stopped he (her father-in-law) was on the floor. Finally in answer to questions which required her to say how long before the final stop of the car the old man fell to the floor, she said: "I couldn't say as to the time, it all happened very quick, the starting and stopping of the car."

The charge in the petition is that of general negligence in the abrupt and violent stopping of the car and that such negligence was the proximate cause of the injury. Of a similar averment the Supreme Court said in McDonald v Railroad, 219 Mo. 468, it "does not plead...