Bartley v. Metropolitan Street Railway Company
| Citation | 49 S.W. 840,148 Mo. 124 |
| Parties | Bartley v. Metropolitan Street Railway Company, Appellant |
| Decision Date | 15 February 1899 |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. C. L. Dobson, Judge.
Reversed and remanded (with directions).
Karnes Holmes & Krauthoff and Frank Hagerman for appellant.
(1) If upon the pleadings and evidence, the plaintiff should not recover, then no error on the trial of the case can be ground for a new trial, and the order granting a new trial must be set aside and judgment entered for defendant upon the verdict. Homuth v. Railroad, 129 Mo. 642; Vogg v. Railroad, 138 Mo. 180. (2) There was no negligence on the part of defendant. When plaintiff in his petition specifies a particular act of negligence, he is confined thereto and can not recover on some other ground not specified. Waldhier v. Railroad, 71 Mo. 514; McManamee v. Railroad, 135 Mo. 440. This rule applies to passenger cases. Price v. Railroad, 72 Mo. 416; Bunyan v. Railroad, 127 Mo. 12; Hite v Railroad, 130 Mo. 132; Ely v. Railroad, 77 Mo. 34; Leslie v. Railroad, 88 Mo. 50; Jacquins v. Railroad, 57 Mo.App. 320; Mayor v. Humphries, 1 Car. & P. 251. (3) There is no presumption that there was negligence in the particular specified, or, in this case, that there was negligence in any respect whatsoever. Before a presumption of negligence arises, there must be some proof of failure in the appliances or method of operation on the part of the carrier. Curtis v. Railroad, 18 N.Y. 534; Thomas v. Railroad, 23 A. 989; Feital v. Railroad, 109 Mass. 398; Buck v. Railroad, 10 N.Y.S. 107; Hawkins v. Railroad, 28 P. 1021. If a passenger is entering or leaving a car, or standing in such position thereon in circumstances imposing the exercise of care on his part, he is not, in case of injury, entitled to rely upon the presumption of negligence on the part of the carrier. Keller v. Railroad, 24 A. 159; Railroad v. McKinney, 124 Pa. St. 462; Farley v. Traction Co., 132 Pa. St. 58; Stager v. Ridge Av.Co., 119 Pa. St. 70; Railroad v. Chappell, 21 Fla. 175; Choate v. Railroad, 36 S.W. 247; Stewart v. Railroad, 146 Mass. 605. Accidents and mishaps which are consistent with the movements of trains and the ordinary operation of the road, create no presumption. Mitchell v. Railroad, 51 Mich. 236; Hayes v. Railroad, 97 N.Y. 259; Hite v. Railroad, 130 Mo. 132; Dressler v. Railroad, 47 N.E. 51; Etson v. Railroad, 68 N.W. 298; Baltimore, etc., Road v. Cason, 72 Md. 377. (4) Wherever, as shown by the testimony, the jolts and jerks received were such as are ordinarily incident to the movement of trains, these are risks which the passenger assumes. Hite v. Railroad, 130 Mo. 139; Choate v. Railroad, 36 S.W. 247; Stewart v. Railroad, 146 Mass. 605; Mitchell v. Railroad, 51 Mich. 236; Hayes v. Railroad, 97 N.Y. 259; 4 Elliott on Railroads, sec. 1589; Dressler v. Railroad, 47 N.E. 51; Etson v. Railroad, 68 N.W. 298; Baltimore, etc., Road v. Cason, 72 Md. 377. In this case there was no proof that the jar or jerking was unusual or other than such as was incident to the movement of the cable train.
W. J. Hollis for respondent.
(1) The court did not err in granting plaintiff's motion for a new trial. It had instructed upon the theory presented by defendant that the burden of proof rested upon plaintiff all through the trial. Hite v. Railroad, 130 Mo. 132; Dougherty v. Railroad, 81 Mo. 325; Dougherty v. Railroad, 97 Mo. 647; Hipsley v. Railroad, 88 Mo. 548; Clark v. Railroad, 127 Mo. 197. (2) The court erred in giving instructions numbered 2, 3, 4, 5 and 6. Och v. Railroad, 130 Mo. 27. The cause of this injury, as charged in the petition, was the sudden jerking or lurching of the car, attributed by plaintiff to the action of the gripman. Plaintiff must make a prima facie case to prove this jerking or lurching of the car, and the injury as a result thereof. If he should happen to be mistaken in the cause of the violent jerk, this would not affect his prima facie case so made, but would devolve upon defendant to show it was not caused by any act of negligence on its part or on the part of its employees operating the same. Whilst plaintiff alleged it was caused by the gripman, it did not devolve on him to prove what caused it. When he showed it was such an unusual lurching or jerking that it broke his hold on the car and threw him off, his case was made. Dougherty v. Railroad, 97 Mo. 654. According to instruction 3, the burden never shifts, nor is the defendant liable for any careless or negligent jerking of the car unless the plaintiff proves it was caused by the gripman. This certainly relieves the defendant from exonerating itself and does away with the idea of a legal presumption ever arising in favor of a passenger.
Action to recover $ 25,000 damages for personal injuries.
The material allegations of the petition are, that defendant owns and operates a street railway in Kansas City, Missouri, which is operated "by means of an endless cable running under ground, driven by steam force, the cars attached to said cable by a device called a 'grip-iron' which may be tightened and loosened on said rope in such manner as to cause the cars to stop steadily or with a sudden jerk, in starting or while running, depending altogether upon the care used by defendant's servants in charge thereof, known as the gripman;" that on the 24th of December, 1893, about seven o'clock in the morning, plaintiff became a passenger on one of defendant's trains of cars, by boarding the same at the intersection of Twelfth and Jefferson streets, for the purpose of going to his place of business; that a great number of people patronize defendant's road in the morning hours, and although it was defendant's duty to furnish cars enough to reasonably accommodate the traveling public, the defendant "ran so few cars and at such long intervals, at the date aforesaid, that the cars were so crowded that it was impossible for plaintiff to get a seat and defendant permitted plaintiff, with many other passengers, to ride on the running-board at the side of the car where he was compelled to stand and hold on to the posts of said car;" that it was defendant's duty, while its cars were so loaded, to so operate them in a reasonably careful and prudent manner as to prevent throwing its passengers off; that after plaintiff boarded said car and was standing and holding on to said posts, and had been seen by the gripman, the "said gripman so carelessly and negligently operated said grip-iron as to cause said car to jerk and lurch with such force that it broke the plaintiff's hold and threw him on the paved street with great force," injuring him so severely that his mind is affected and he is permanently disabled.
The defendant filed a verified answer setting up, 1st, a general denial; 2nd, a plea of contributory negligence; 3d, a release by plaintiff, in consideration of twenty dollars of all claims and demands arising out of the accident, and specifying that no attempt should be made by plaintiff to set aside the release, but if any such attempt should be made the plaintiff should deposit the twenty dollars with the clerk of the circuit court of Jackson county, as a condition precedent to any such attempt to set aside the release, and that no tender or offer to return the twenty dollars was ever made by plaintiff.
The unverified reply of plaintiff denied, 1st, that the release was the release of the plaintiff because at the date of it plaintiff "had just come out of the hospital, was yet ailing and had not recovered from his injuries and was unfit to be talked to on any matter of business on account of his injuries and the effect it had on his mind, and that he was mentally incapacitated from contracting," and therefore "he is not bound by said release;" 2d, that defendant sent two of its special agents to plaintiff who told him the defendant had sent him twenty dollars and therefore he says the release or contract is not his and he is not bound by it.
At the beginning of the trial the defendant objected to the admission of any evidence on the ground that the defendant was entitled to a judgment because the reply is a departure from the petition, because the matters set up in the reply can not be set up by way of reply, because the matters set up in the reply are not cognizable at law, and because such matters constitute no reason for avoiding the release. The court overruled the objection and the defendant excepted.
Plaintiff's version of the accident is that about seven o'clock on Sunday morning, December 24th, 1893, at Twelfth and Jefferson streets, in Kansas City, he boarded the grip-car of one of defendant's trains of cable cars, for the purpose of going to the saloon at number 1519 Bell street, where he worked; that he got on the running-board or foot-board, as it is convertibly designated, of the grip-car, at about the center of the car; that the car was full, except the first or second double seat from the front of the car,...
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