Baldwin v. Kansas City Rys. Co.

• Decision Date: 26 May 1919
• Docket Number: No. 13253.,13253.
• Parties: BALDWIN v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

214 S.W. 274

BALDWIN v. KANSAS CITY RYS. CO.

No. 13253.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Suit by Annie Baldwin against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

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

TRIMBLE, J.

Plaintiff, while attempting to board a street car which had stopped at the usual place for receiving and discharging passengers, was thrown down and injured. She brought this suit for damages, and obtained a judgment for $4,000 from which defendant appealed.

According to the evidence in plaintiff's behalf, the car stopped at the usual place where a number of people were waiting to get on. Plaintiff was the third person to board 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, with an iron rod or stanchion between the two openings at the step. The conductor stood with his back against the rear wall of the vestibule, facing the way the car was going, and, by means of a lever without leaving his position, could open and close the doors to the place of entrance and exit. While the seats of the car were occupied, or practically so, there was ample room in the car for the persons waiting at the stopping place. The step was clear, and, if the vestibule was not empty, there were very few persons in it. Plaintiff followed immediately the two persons who preceded her on the car. She placed her right foot on the step, took hold of the iron upright rod or stanchion, and, placing her full weight on the step, had her left foot in the air, in the act of lifting it from the pavement to the step, when the car, without the door being shut or any warning given plaintiff, was quickly started forward and went on, its way. The forward movement of the car caused plaintiff to lose her balance, her body to sink down, and her left foot to drag on the ground. After the car had run a short distance with plaintiff 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 for a distance of 40 or 45 feet further, when her hold with her right hand gave way, and she fell to the pavement upon her back with her feet to the rear at a point about 85 feet from where the car first started.

According to defendant's claim, the plaintiff boarded the car in safety after it started, but, upon turning around and discovering that her husband had not gotten on, she thereafter attempted to get off, and fell and was injured. There was, however, an abundance of evidence from bystanders, disinterested witnesses, that the matter occurred as hereinabove stated, so that we must accept that version which the jury by their verdict have found to be the true one.

The claim that plaintiff's version of how the accident occurred is to at variance with well-known natural laws or the common experience of men as to justify us in rejecting it is wholly untenable. We see nothing incompatible with natural laws or physics in the way in which it is said to have occurred.

Neither can we see how we would be justified in declaring as a matter of law that plaintiff was guilty of contributory negligence because she held on to the upright and was dragged instead of letting go at once. She already had hold of the iron rod, and natural instinct would cause her to cling to whatever she had in her grasp in the effort to regain her equilibrium and place her other foot upon the step. She was suddenly thrust into a dangerous situation, and, under the terror and excitement of the moment, would not be held contributorily negligent even if she had not instantly done the best thing to be done, or had not let loose at once. Besides, who can say, as a matter of conclusive fact, that had she let loose immediately her fall and injuries would not have been greater and more grievous than those she received? It is true one of her witnesses gave it as his opinion that she did not get her left foot off the ground, but the others say she did. And even if she did not, it cannot be conclusively said that she could have preserved her equilibrium by letting loose the upright and taking her right foot from the step, allowing the car to go on, leaving her standing in the street.

There was neither variance nor departure in the proof. The petition charged negligence in starting the car forward after it had stopped at the usual place and "while plaintiff was in the act of boarding the car and at a time when she was in a position of danger," and the case was submitted to the jury upon that charge. There was no allegation as to the manner in which the car started, whether by violent jerk or otherwise. The evidence in plaintiff's behalf abundantly sustained that charge; and,...