Bate v. Harvey

• Decision Date: 21 May 1917
• Docket Number: No. 12468.,12468.
• Citation: 195 S.W. 571
• Parties: BATE v. HARVEY et al.
• Court: Missouri Court of Appeals

195 S.W. 571

BATE v. HARVEY et al.

No. 12468.

Kansas City Court of Appeals. Missouri.

May 21, 1917.

Rehearing Denied June 12, 1917.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Etta M. Bate against F. F. Harvey and R. J. Dunham, receivers of the Metropolitan Street Railway Company Judgment for plaintiff, and defendants appeal. Affirmed.

Clyde Taylor, of Kansas City, for appellants. Atwood & Hill, of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries; plaintiff having recovered, defendants have appealed.

Appellants' first point is that a demurrer to the evidence should have been sustained. The evidence shows that plaintiff, a lady 47 years of age, between 1 and 1:30 o'clock on February 14, 1912, while attempt-to alight from an Independence Avenue car at Eighth street and Woodland avenue, in Kansas City, Mo., stepped down upon the step of the car and slipped on such step, on account of snow and ice being deposited thereon, and was thereby thrown in such a way that she struck the step on the middle part of her back and right side. Plaintiff did not look at the step before she placed her foot on it, but after she fell she looked and saw the snow and ice on it. The car in question was what is known as a pay-as-you-enter car, having the vestibule divided in the middle by a rod placed just above the step on the rear platform. It was the custom for passengers to enter the car to the rear of said rod and those leaving the car to go between the rod and the body of the car, or in front of said rod. Plaintiff came out of the car, using the ordinary exit. There was about an inch of snow on the ground at the time of the accident.

Plaintiff testified that the snow and ice on the step was from 1½ inches to 2 inches thick; that it did not cover the entire step, which was 8 or 10 inches wide and several feet long, but covered a place, the dimensions of which are not given, but of some size, where she put her foot in stepping from the car; that the snow and ice were packed down hard, and that after she fell she could see the ice on the step through the place her foot made in the snow, which covered the ice. The evidence shows that there had been no snow since 4:15 p. m. the previous day, and that the thermometer had been below freezing at all times between the last-mentioned time and the time of the accident, except that it went to 33 degrees, or 1 degree above freezing, at 1 o'clock on the day of the accident. There was no evidence as to how the snow or ice got on the step, and no direct evidence as to the length of time it remained there.

The defense at the trial was that there was no ice or snow upon the step, but it was admitted by defendants' witnesses that the step was wet. Under the facts and circumstances of the case made by plaintiff, defendants were required to use, not ordinary care, but a high degree of care (Craig v. United Rys. Co., 175 Mo. App. 616, 158 S. W. 390), and we must consider this case in view of this fact. As prudent persons, those in charge of the car were required to anticipate people falling just as plaintiff fell, when there is freezing weather, and when deposits of snow and ice are known to be, or are likely to be, upon the steps. Craig v. Railways Co., supra, 175 Mo. App. loc. cit. 625, 158 S. W. 390. Such persons were required to use a higher degree of diligence than those operating railroad trains (Tevis v. Railway, 185 S. W. loc. cit. 740), in that in the operation of street cars stops are made on almost every corner, and, as in this case, in operating a pay-as-you-enter car the conductor is stationed almost at the step itself. The fact that the snow and ice had become packed, and had gotten in an icy condition, raises a fair inference from which the jury might conclude that the ice was present on the step for some considerable time before plaintiff fell.

It is argued by defendants that the ice and snow might have been deposited there by passengers entering and leaving the car, but there is no evidence of such a fact. The jury could well have inferred that, on account of the packed and icy condition of the deposit on the step, the same had been there for some length of time, and, in fact, that it had been deposited there previous to 4:15 p. m. of the day before, at which time it quit snowing; this, for the reason,...