Berry v. Metropolitan Street Ry. Company
| Decision Date | 15 May 1911 |
| Citation | 137 S.W. 602,156 Mo.App. 560 |
| Parties | R. T. BERRY, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James. H. Slover, Judge.
Judgment affirmed.
John H Lucas for appellant.
The court erred in not sustaining defendant's motion in arrest of judgment for the reason "that the petition on its face does not state facts sufficient to constitute a cause of action." The court erred in overruling the defendant's motion for a new trial, for the reason that the peremptory instruction in the nature of a demurrer to the evidence asked by defendant at the close of plaintiff's case and renewed at the conclusion of all of the evidence should have been given but was refused. Scroggins v. Met St. Ry. Co., 138 Mo.App. 215; Payne v Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 569; Gurley v. Railroad, 104 Mo. 211.
Boyle & Howell for respondent.
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff was a passenger on a westbound electric street car operated by defendant on Ninth street in Kansas City and was injured in alighting from the car. He testified that he notified the conductor of his destination, that the car stopped at that place to receive and discharge passengers; that while it was coming to a stop he left his seat, went into the rear vestibule, and when the car stopped, he started to step down to the pavement and that, as he was making the last step, the car suddenly started forward and threw him to the pavement inflicting the injuries of which he complains. We quote from his testimony:
"I went on the platform about the safety stop, and as it went on down to the store, the car ran down so slow and came down to a stop, I was on the vestibule as it slowed down there, I stepped out on the step and when it came to a stop as I was swinging this foot, why, it suddenly started, and threw me; my head struck there on this left shoulder and arm, on my left side."
The evidence of defendant contradicts that of plaintiff and is to the effect that plaintiff did not wait for the car to stop but stepped from it while it was moving.
The averment of negligence in the petition is as follows: "While said car was slowing down plaintiff prepared to alight from the same when said car should come to a stop, and while he was standing on the lower step of said car and while said car was moving at a very slow rate of speed or had come to stop the defendant negligently caused the same to be started forward throwing plaintiff from his balance and to the ground, causing severe injuries to his left shoulder and arm and his left eye and face."
Two assignments of error are argued by defendant, viz., that the petition does not state a cause of action and that the demurrer to the evidence offered by defendant should have been given. Both assignments...
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