Baughman v. Metropolitan St. Ry. Co.

• Decision Date: 18 June 1915
• Docket Number: No. 11618.,11618.
• Citation: 177 S.W. 800
• Parties: BAUGHMAN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

177 S.W. 800

BAUGHMAN v.METROPOLITAN ST. RY. CO.

No. 11618.

Kansas City Court of Appeals, Missouri.

June 18, 1915.

Rehearing Denied July 7, 1915.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Katie D. Baughman against the Metropolitan Street Railway Company.From judgment for plaintiff, defendant appeals.Affirmed.

John H. Lucas and Bruce Barnett, both of Kansas City, for appellant.Strother & Campbell and Cowherd, Ingraham, Durham & Morse, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff was a passenger on one of defendant's electric street cars in Kansas City, Mo.She was injured while attempting to alight.She charged her injury to negligence of defendant's employés in charge of the car, and brought this action for damages and recovered in the trial court.

There was evidence tending to prove that plaintiff signaled the car to stop, and that it did so; that she then arose and went to the front vestibule to alight.The floor of the vestibule was several inches lower than the floor of the car, and as she was in the act of stepping down into it the motorman started the car forward with a sudden jerk, throwing her against the side of the vestibule.Then the car was suddenly stopped, and she was thrown back against "the little brass bars" on the other side.She"was dazed, and could not see anything just, at the time."

We think the defendant's demurrer was properly overruled.The evidence was sufficient to uphold a verdict of negligence.Defendant has cited us to some cases involving the necessary and unavoidable jerk of cable cars.They do not apply here, as this was an electric car, a car that will start gently when properly handled.Witters v. Railway Co., 151 Mo. App. 488, 132 S. W. 38;Elliott v. Railway Co., 157 Mo. App. 520, 138 S. W. 663.

It is suggested that the attorney for plaintiff was guilty of misconduct in stating to the jury, in his opening statement, what he thought the law was on the facts stated.The effect of his statement was that he believed, on the facts stated by him, the law required defendant to use a certain degree of care.He explained to the jury that he was only stating what he contended was the law.The effect of it was that, if the facts were as he stated, the law was with plaintiff.We think the remarks were not improper.

Only one instruction was given for plaintiff, and that was on the measure of damages, and defendant complains of that.The Supreme Court has given...