Barth v. Kansas City El. Ry. Co.

• Decision Date: 01 February 1898
• Citation: Barth v. Kansas City El. Ry. Co., 44 S.W. 778, 142 Mo. 535 (Mo. 1898)
• Parties: BARTH v. KANSAS CITY EL. RY. CO.
• Court: Missouri Supreme Court

44 S.W. 778

142 Mo. 535

BARTH v.KANSAS CITY EL. RY. CO.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

DEATH BY WRONGFUL ACT — AMENDED PETITION — JUDICIAL NOTICE — DEMURRER TO EVIDENCE — ELEVATED RAILROAD — NEGLIGENCE — ELEMENTS OF DAMAGES — INSTRUCTIONS.

1. Where a widow sues for wrongful death of her husband within six months, as authorized by Rev. St. 1889, § 4425, and after six months files an amended petition, it was unnecessary in it to allege that the original petition was filed within six months, as the court will take notice of the records in the same cause.

2.There was evidence that, at the station of defendant's elevated railroad, deceased stepped on the lower step of a car to take passage; that while so doing the car was suddenly started, and deceased either fell off, or, to avoid falling, stepped off on the station platform; that the acquired momentum carried him over the edge of the platform, through an open space between the railing and the side of the car, and that he fell to the street below.Held, that a demurrer to the evidence was properly overruled.

3.A demurrer to evidence admits every fact which the jury might infer from the evidence, if it were before them.

4.An electric car, on an elevated railroad, had stopped at a station to receive passengers.While it was standing still deceased stepped on the step of the car for the purpose of getting on the car as a passenger.Held, that he was entitled to all the protection of a passenger, and hence defendant was negligent in suddenly starting the car, before deceased could enter it.

5.In an action for death by wrongful act, it appeared that (1)defendant suddenly started its car, which deceased was about to enter, at an elevated station, causing deceased to fall off, or requiring him to step off, on the station platform; (2) that the railing at the end of the platform did not reach the edge, and that there was left a space of 26 inches, through which deceased was carried by the momentum, and that he fell to the street below.No passengers were allowed to ride on the car steps, and no necessity was shown for leaving so wide a space.The petition declared on the two acts of alleged negligence.Held, that the question of defendant's negligence, in not extending the railing nearer to the edge of the platform, was for the jury.

6.Plaintiff was not bound to show what space ordinarily is left between the cars and railing by other companies like defendant.

7.In an action for death by wrongful act, where the essential elements of the damages are given to the jury for plaintiff in the language of the statute(Rev. St. 1889, § 4427), its generality does not constitute reversible error; defendant being bound to point out, in its own instructions, the elements limiting the damages.

8.For wrongful death, Rev. St. 1889, § 4427 gives such damages, not exceeding $5,000, as the jury may deem fair with reference to the necessary injury resulting from such death, having regard to the circumstances attending such wrongful act.In an action for the death of a husband, defendant requested an instruction that, if the jury should find for plaintiff, they should assess the damages at such sum as would compensate her for the actual pecuniary loss sustained, — the actual amount in money which she lost.Held properly refused, as restricting plaintiff's compensation to the mere present money loss she had suffered, she being also entitled to compensation for prospective or proximate losses.

9.Plaintiff could not recover for mental anguish, grief, or sorrow which she suffered by loss of her husband.

10.In a civil action, where an unsound principle of law has been incorporated in a requested instruction, it is not error for the court to refuse it, or to fail to give a correct instruction of its own motion.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by Phillipine Barth against the Kansas City Elevated Railway Company.From a judgment for plaintiff, defendant appeals.Affirmed.

Pratt, Ferry & Hagerman, for appellant.Meservey, Pierce & German, for respondent.

GANTT, P. J.

This action is by the widow of Bartholomew Barth for damages resulting to her from his death, occasioned, as she alleges, by the negligence of the defendant, at its elevated station at Ninth and Mulberry streets, in Kansas City, Mo. Plaintiff's husband was killed February 25, 1894, and this action was commenced March 22, 1894.The record shows that at the April term, 1894, defendant appeared and moved to dismiss the suit, which motion was overruled.On May 5, 1894, defendant demurred, but on June 16, 1894, withdrew its demurrer, and on the same day plaintiff filed an amended petition, which defendant answered October 9, 1894, and afterwards, on December 12, 1894, the second amended petition, on which this cause was heard was filed.It contained two counts, but, as the second count was withdrawn, the first count only remains as the basis of the judgment recovered.The first count avers, in substance, that plaintiff, on the 25th of February, 1894, was the lawful wife of Bartholomew Barth, and on that day defendant was a railway corporation organized under the laws of Kansas, and was engaged in operating an elevated electric street railway for the carriage of passengers for hire between Kansas City, Kan., and Kansas City, Mo.; that, in order to patronize said railway, passengers were required to ascend to its stations by means of steps, and go upon elevated platforms, in order to get into its cars; that the platform and station at Ninth and Mulberry streets is about 20 to 30 feet above the surface of the ground; that on the west end of said platform defendant had erected a fence or guard railing to protect persons patronizing its road from falling off of said platform, but had so negligently or carelessly constructed it that it left a space of about three feet between the track of said company and the south end of said fence or railing, thus rendering said platform exceedingly dangerous to its patrons making use thereof to enter its trains; that it had permitted said platform to remain in this condition for a year prior to February 25, 1894, and for a time sufficient for defendant to have ascertained its dangerous condition, by the exercise of ordinary care.The petition then charges the facts attending the death of plaintiff's husband in these words: "Plaintiff further states, for the purpose of admitting passengers to the cars owned and operated on its said railroad as aforesaid, steps are supplied on the right-hand side of the rear platform, by the aid of which passengers are invited and are accustomed to go up upon the platform and into said cars; that each of said cars, and the particular one hereinafter mentioned, is provided with a gate, which is intended to guard against accidents, and to prevent passengers from falling from the cars while in motion; that the rules of the defendant company provided that the gates of the cars should be kept closed while the cars were running over the elevated structure, and that the cars would not be started until passengers were fairly landed or received on the car; that it was the duty of the agents, employés, and servants of defendant to keep said gates closed while running said cars over the elevated structure, and they were only accustomed to be open while the cars were stopped for the admission of passengers at the several stations along said railroad.""Plaintiff states that, to wit, on said 25th day of February, 1894, the husband of plaintiff, Bartholomew Barth, entered the station of said defendant company at the corner of Ninth and Mulberry streets, as aforesaid, for the purpose of taking a trip west as a passenger on one of defendant's cars.Plaintiff states that the destination of her said husband, Bartholomew Barth, was his home in Kansas City, Kansas, near one of the terminal stations of said defendant company, in said Kansas City, Kansas, and that upon the arrival at said station of the first car of said railway, conducted, maintained, and operated by said defendant, and so propelled by the servants, agents, and employés of defendant's company, and after said car had been stopped and the gate of the car opened for the admission of passengers, the husband of said plaintiff attempted to get upon said car for the purpose of riding upon the same as aforesaid.Plaintiff states that while Bartholomew Barth was in the act of getting upon said car, and before he had sufficient time to get upon the platform of said car, and without waiting for said Bartholomew Barth to board said car, or to get upon a safe portion of the platform of the same, and before said gate had been closed, the agents, servants, and employés of defendant, managing its said railway and in charge of said car, and knowing that he was in the act of boarding said car, negligently and carelessly started said car forward suddenly, and at a rapid rate of speed, causing said Bartholomew Barth. the husband of this plaintiff, to be thrown with great force and violence off of the car and upon the platform, near the point where said fence or guard on the west end of said platform was negligently and carelessly left open; and by reason of the fact that said fence or guard was left exposed and open on the west end of said platform as aforesaid, and there being nothing to stop his body and nothing which he could grasp to save himself, he was, by the impetus of said fall from defendant's car, propelled with great force and violence over said platform, to the surface of the ground, twenty (20) to thirty (30) feet below.Plaintiff states that, by reason of said fall, caused by the negligence and carelessness of the servants, employés, and agents of said defendant, as aforesaid, said Bartholomew Barth, the husband of plaintiff, was so greatly bruised, mangled, and hurt that he died; that such death resulted from, and was directly...