Baldwin v. Kansas City Rys. Co.

• Decision Date: 02 May 1921
• Docket Number: No. 13877.,13877.
• Citation: 231 S.W. 280
• Parties: BALDWIN v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

231 S.W. 280

BALDWIN v. KANSAS CITY RYS. CO.

No. 13877.

Kansas City Court of Appeals. Missouri.

May 2, 1921.

Rehearing Denied May 23, 1921.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Lee K. Baldwin against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and Chas. N. Sadler and E. E. Ball, both of Kansas City, Mo., for appellant.

T. J. Madden and Harry R. Freeman, both of Kansas City, Mo., for respondent.

ARNOLD, J.

This is a suit by a husband for loss of society and domestic services of his wife on account of injuries sustained by her due to alleged negligence of defendant. Trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $5,000. Defendant appealed.

Plaintiff's evidence shows that on November 30, 1916, Annie Baldwin, the wife of plaintiff, attempted to board one of defendant's south-bound Woodland Avenue street cars on Main street, just north of Thirteenth street, in Kansas City. The car had stopped at the usual place for receiving and discharging passengers, and there were several persons waiting to board the car at that point. Mrs. Baldwin was the third person to attempt to enter the car. It was a pay-as-you-enter car, the rear vestibule being separated into two parts, the rear one for entrance and the other for exit of passengers, the two parts being separated by an iron rod or stanchion at the steps. The conductor stood with his back against the rear wall of the vestibule, facing the front of the car, and by means of a lever, without leaving his position, could open and close the doors to the places of entrance and exit. The seats in the car were occupied, or practically so, but there was ample room inside for the reception of persons waiting at the stopping place. Mrs. Baldwin followed immediately the two persons who preceded her onto the car, placed her right foot on the step, took hold of the iron rod or stanchion, and, placing her full weight on the step, raised her left foot from the pavement in the act of lifting it on to the step, when the car, without the door being closed or any warning given, was quickly started forward and went on its way. The forward movement of the car caused plaintiff's wife to lose her balance, her body' sank down, and her left foot dragged on the pavement.

After the car had run a short distance, the woman clinging to it in this manner, her right foot slipped off the step, her body swung around, so that her, face was to the rear, and her hand slipped down the rod, allowing the lower portion of her body to drag along on the pavement, a distance of 40 to 45 feet farther, when her hold with her right hand gave way, and she was precipitated to the pavement upon her back, with her feet to the rear, at a point 80 to 85 feet from where the car first stopped.

The defendant offered some testimony to the effect that the woman boarded the car after it was started, looked around, and, on discovering that her husband was not on the car, attempted to alight, fell, and was injured. There was, however, proof by disinterested bystanders that the matter occurred as hereinabove stated, and we must accept that version which the jury by their verdict found to be the true one. Defendant urges that plaintiff's version of how the accident occurred is so at variance with well-known physical laws and common experience as to justify us in rejecting it. We see nothing incompatible with natural laws or physics in plaintiff's version of the occurrence, and therefore conclude that defendant's position relative thereto is wholly untenable.

The petition charges negligence in the premature starting of the car, and pleads the resulting injuries in detail, including the charge that—

"As a direct result of said injuries and conditions resulting therefrom plaintiff has lost and been injured in the enjoyment of the society, assistance, and services of his wife, including that of the marriage relations, and she has had to have care, nursing, and medical treatment, and will continue to require same in the future."

Defendant's answer is a general denial.

Counsel for defendant complain that the trial court erred in giving instruction No. 1 for plaintiff, and argue that, under said instruction— "Even though the plaintiffs wife was not attempting to board the car when the signal to start same was given, and attempted to board it afterward, and while it was yet standing still, under that instruction plaintiff would have a right to recover."

The proof is ample that the signal to start was not given until Mrs. Baldwin was in the act of entering the car and the case of Quinn v. Railway, 218 Mo. 545, 118 S. W. 46, cited by defendant is not in point. The instruction required the jury to find that plaintiff's wife was in the act of boarding the car "while it was standing."

Further defendant complains that instruction No. 1 offends because it "failed to require plaintiff to exercise ordinary care for his wife's safety." This contention is not well taken for the reason that contributory negligence is not pleaded as a defense, and defendant had no right, therefore, to have that issue submitted. Melly v. Railroad, 215 Mo. 567, 114 S. W. 1013; Boesel v. Wells Fargo & Co., 260 Mo. 463, 169 S. W. 110; Lester v. United Rys. Co., 219 S. W. 666.

Instruction No. 1 is further criticized "because not based upon the testimony and the pleaded cause." The evidence abundantly sustains the charge in the petition of the premature starting of the car while plaintiff's wife was in the act of boarding same. There was no variance between the proof and the submission. Baldwin v. K. C. Rys. Co., 214 S. W. 274.

Error is also charged in Instruction No. 2, asked by plaintiff and given by the court, for the reason that it permits the jury to take into consideration the testimony of fainting spells, irritability, inability for the sexual relations, condition of uterus, melancholy conditions, and inability to walk, claiming that same were not pleaded, and that testimony relating thereto was erroneously admitted. It was specifically alleged in the petition that—

"As a result of said...