Allen v. Dunham
| Decision Date | 01 March 1915 |
| Docket Number | No. 11411.,11411. |
| Citation | 188 Mo. App. 191,175 S.W. 135 |
| Parties | ALLEN v. DUNHAM et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County.; O. A. Lucas, Judge.
Action by Alice E. Allen against Robert J. Dunham and another, receivers of the Metropolitan Street Railway Company. From decision for plaintiff, defendants appeal. Affirmed.
John H. Lucas and Broaddus & Crow, all of Kansas City, for appellants. Park & Brown, of Kansas City, for respondent.
This is an action under section 5425, R. S. 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 a 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, R. S. 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 $3,500 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 80 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 overthrown 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 some time 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:
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:
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 MacDonald v. Railroad, 219 Mo. loc. cit. 487, 118 S. W. 84, 16 Ann. Cas. 810:
It ...
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