Amos v. Fleming

• Decision Date: 03 May 1926
• Citation: 285 S.W. 134,221 Mo.App. 559
• Parties: LEWIS AMOS, RESPONDENT, v. FRED W. FLEMING, ET AL., RECEIVERS, KANSAS CITY RAILWAYS COMPANY, APPELLANTS. [*]
• Court: Kansas Court of Appeals

285 S.W. 134

221 Mo.App. 559

LEWIS AMOS, RESPONDENT, v. FRED W. FLEMING, ET AL., RECEIVERS, KANSAS CITY RAILWAYS COMPANY, APPELLANTS. ^[*]

Court of Appeals of Missouri, Kansas City

May 3, 1926

Appeal from the Circuit Court of Jackson County.--Hon. E. E Porterfield, Judge.

AFFIRMED.

Judgment affirmed.

Gamble Trusty & Pugh for respondent.

Chas N. Sadler, E. E. Ball and Louis R. Weiss for appellants.

ARNOLD, J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is an action in damages for personal injuries alleged to have been received by plaintiff while attempting to enter a street car operated by defendants.

The defendant Kansas City Railways Company is a corporation which, at the time of the alleged injury in suit, was in the hands of Fred W. Fleming and Francis M. Wilson, receivers, named parties defendant. As receivers, these defendants operated a system of street railways in the city of Kansas City, Mo., and environs. As a part of said system there was in operation and under the direction of said receivers, a line known and designated as the Fairmount Park line which crosses the Blue River at a point about a quarter of a mile east of the village of Sheffield, now within the city limits of Kansas City. The tracks of said street car line cross the Blue River in an east and west direction, over a bridge used for such purpose only. Immediately east of said bridge and about 125 to 150 feet from the east end thereof, the company maintains a station for receiving and discharging passengers, known as Highlander Station. A shed, or shanty, is located there for the convenience of street car patrons and is lighted at night by two or three electric lights. About twenty-five feet east of said station the street car tracks and the Kansas City Southern Railway tracks cross at right angles and the street cars going in either direction are required to make a dead stop before crossing said railway tracks.

On the morning in question, February 1, 1923, one of defendants' street cars, proceeding west, between six and seven o'clock in the morning, encountered a freight train on the said railway tracks which had pulled upon the crossing and stopped. The street car approaching from the east stopped before it reached the railroad tracks and remained standing until the freight train cleared the crossing and then proceeded to Highlander Station where it stopped to discharge some passengers.

Plaintiff and his companion, one Mose Newman, alighting from the caboose of said freight train, about forty or fifty feet south of the street car track, were told by the train conductor to proceed to the street car station where they could board a car for the city. Plaintiff and Newman then walked around the rear end of the standing caboose and proceeded toward Highlander Station. At this point there is some divergence in the evidence of the parties hereto as to what took place, but it is agreed that after the freight train cleared the crossing, the street car proceeded west, crossed the railway tracks and stopped at Highlander Station.

Plaintiff and Newman testified that when they stopped plaintiff was near the front of the car and the motorman motioned them to go to the rear, which they did, and there they saw some passengers alighting, one of whom was an elderly woman with a bundle, or bundles, which the conductor handed to her just as plaintiff placed his foot on the first step in an effort to get on board the car. It is not disputed that the street car was delayed three to four minutes waiting for the train to clear the crossing and that by reason thereof, the car was that length of time behind its schedule.

Plaintiff stated that as the old lady got off, he placed his foot upon the step while the car was standing and made an effort to get in but the door was closed before he succeeded in getting inside the vestibule, and the car started; that the conductor looked at plaintiff; that plaintiff beat upon the door with his hand and the conductor reached over and got hold of something that looked like a lever inside the glass door. Plaintiff expected the car to be stopped and the door opened; that when the car had proceeded a distance of approximately 130 feet, he was struck by an upright part of the bridge and knocked from the step to which he was clinging, and injured; that he was not familiar with that street car line and the proximity of the bridge and the conductor gave him no warning thereof. Plaintiff stated that at the motion of the motorman, he went from the front to the rear of the car, waited for persons to get off, and then took hold of the front handhold; that when he came in contact with the upright of the bridge, his body was thrown against the glass of the door, breaking same and that the weight of his body and the force of the impact pulled the handhold from the body of the car.

Witness Newman corroborated plaintiff in these statements while the testimony of defendants' witnesses is flatly contradictory of that of plaintiff's witnesses upon the circumstances immediately surrounding the accident.

One Leonard W. Crump, conductor of the street car in question, testifying for defendants, stated his car stopped on the east side of the railroad crossing for three or four minutes; that when the freight train had cleared the crossing, the car proceeded over the intersection and made the stop at Highlander Station; some passengers were there discharged after he opened both doors; that there were four or five people standing in the rear vestibule; that he stood with his back to the front facing the rear of the car; that there were no people at the station to board the car and he then closed the doors which are held closed with a wooden button; after closing and fastening the doors, he gave the usual signal and the car started; that he did not see plaintiff and knew nothing of him until the crash of glass in the door.

The testimony shows there are two doors opening from the vestibule, thus forming an exit on one side of the double doors and an entrance on the other. The conductor stated the crash broke the glass in the exit door and tore off the handle; that after the injury, plaintiff was not on the bridge but, in fact, was eight or ten feet east of the end of the bridge. He also stated that the car crew expected to make up the time lost in waiting for the freight train.

Plaintiff's witness Newman testified that after plaintiff had been "scraped" from the car, he found him lying on the ties between the rails of the track, on the bridge.

There were six witnesses for defendants who corroborated the conductor as to the manner in which the door was closed and other things done by him before and during the closing of the door. There seems to be no conflict in the evidence to the effect that when the crash of the door occurred, the conductor gave the emergency stop signal and that the car crossed the bridge in obedience to the company's rules, and stopped beyond the west end thereof.

Charles Eberly, the motorman, testified that he saw no one waiting at Highlander Station to board the car, and that he had motioned no one to go to the rear of the car for entrance. The testimony shows that at the time the injury occurred it was not yet daylight and that the lights at the station were burning. The evidence in behalf of defendants tends to show that the doors in this particular car are not operated by a lever as are the doors on many of the cars operated by defendants. The testimony of all the rear vestibule witnesses was to the effect that there was no woman, young or old, with or without packages, who alighted from the car at that time.

The amended petition charges that the bridge and structure across the Blue River were so close to the street car track over which the car in question was to pass that a person upon the steps of the car would be struck and knocked therefrom and probably injured and that these facts were well known to defendants and their employees operating said car. The negligence charge in the petition is as follows:

"He further says that as said car was about ready to start or had just started, one of which is true, the plaintiff for the purpose of taking passage as a passenger upon said car, stepped upon the step and took hold of the handle and before he could get into the vestibule said car was suddenly driven forward and the door at the vestibule closed so that he could not enter and thereupon the plaintiff hammered upon the glass door to attract the conductor's attention and to get said door open and whereupon said conductor turned to said door and looked towards and saw the position of the plaintiff, but did not open said door and did not warn the plaintiff of the danger of said bridge and then said conductor turned away and left said door closed all of which said time said car was proceeding towards said bridge and said conductor negligently failed to open said door and negligently failed to warn the plaintiff and negligently failed to stop said car before the step on which said plaintiff was riding reached said structure and bridge, and by reason of the negligence of defendants' said conductor the plaintiff was struck near the end of said bridge or a portion of said bridge and he does not know which but says that one or the other is true and he was knocked from the step of said car and greatly injured," etc.

Damages are asked in the sum of $ 15,000.

The answer, after admitting the status of defendants as stated in the petition, is a general denial. Further, the answer pleads contributory negligence in that plaintiff attempted to board the street car after the invitation to board the same had been closed and the street car had started forward and was in motion. The reply was a...