Black v. Metropolitan Street Railway Co.

• Decision Date: 06 April 1908
• Citation: 109 S.W. 86,130 Mo.App. 548
• Parties: VIOLET BLACK, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

109 S.W. 86

130 Mo.App. 548

VIOLET BLACK, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 6, 1908

Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.

AFFIRMED.

John H Lucas for appellant.

(1) There was no evidence tending to prove that defendant owned or operated the line of street railway or the car upon which plaintiff was a passenger, and for this reason the court erred in overruling defendant's demurrer to the evidence in the form of a peremptory instruction for the defendant at the close of plaintiff's case. Lindsey v Railroad, 36 Mo.App. 51; Kaltenbaugh v Railroad, 34 Mo.App. 148; Geiser v. Railroad, 61 Mo.App. 462; Gilbert v. Railroad, 23 Mo.App. 65; Cochran v. Railroad, 113 Mo. 366; Glover v. Nut & Bolt Co., 153 Mo. 327; Sappington v Railroad, 95 Mo.App. 393. (2) The court erred in refusing to give an instruction in the nature of a demurrer to the evidence asked by defendant, at the close of plaintiff's case, because plaintiff had offered no evidence tending to prove that defendant was guilty of any negligence, and particularly the negligence charged in the petition. (3) The court erred in giving plaintiff's instruction numbered one, because there was no evidence upon which to base said instruction. Taylor v. Railroad, 93 Mo. 79; McAtee v. Vanlandingham, 75 Mo.App. 45; Keithley v. Southworth, 75 Mo.App. 442; Culbertson v. Railroad, 140 Mo. 35. This instruction was further erroneous because its effect was to declare that the starting of the car was conclusive evidence of negligence. Clay v. Railroad, 17 Mo.App. 629; Brown v. Railroad, 50 Mo. 461.

Bird & Pope, for respondent, filed argument.

OPINION

BROADDUS, P. J.

--The plaintiff's suit is to recover for injuries to her person claimed to have been received while a passenger on defendant's car on the 28th of January, 1905. That part of the petition setting out the cause of her injury is as follows: "That on or about January 28, 1905, at about the hour of 6:20 o'clock A. M. of said day, plaintiff was a passenger on an electric car of said defendant bound or going toward Kansas City, Missouri, and when said car came to a stop for West Twenty-Fourth street, plaintiff proceeded to alight therefrom and while plaintiff was in the act of alighting from said car, said car was carelessly and negligently started, moved or run forward by said defendant and its agents, servants, and employees in charge of said car, whose names are to the plaintiff unknown, and before plaintiff had alighted from said car and without giving plaintiff any warning, although said defendant and its agents, servants and employees knew, or by the exercise of reasonable care should have known, that plaintiff was in the act of alighting from said car, and plaintiff, by reason thereof, was hurled and thrown from said car. . . ." The judgment was for plaintiff in the sum of $ 1,000, from which defendant appealed. At the close of all the evidence, defendant asked the court to direct the jury to return a verdict for the defendant. This request the court denied.

The defendant assigns as error, the action of the court in refusing the peremptory instructions asked. The reason given why the instructions should have been given are two: First, because it was not shown that defendant had any connection whatever with the southwest boulevard electric line, or with the car upon which plaintiff was a passenger. Second, because there was no evidence that at the time the car stopped plaintiff was in the act of alighting therefrom. As to the first proposition the evidence was to the following effect. Plaintiff was asked:

"Q. You took what they call a Southwest Boulevard car? A. Yes, sir, took the Rosedale car and then changed on Twenty-fourth. Q. Of the Metropolitan Street Railway? A. Of the Metropolitan Street Railway."

Albert R. Straight, who was the conductor on the car at the time the plaintiff was hurt, testified in the case. He was asked. "Q. Did you ever work for the street car company? A. Yes, sir. Q. Was you working for them on the 28th day of January, 1905? A. Yes, sir. Q. In what capacity was you working for them? A. Conductor."

We think the evidence stated, and there was other of a similar character, tended to show that defendant was operating the car at the time plaintiff was injured.

If the defendant was not connected with the operation of the line in question, that was a sufficient defense, and it was not necessary for it to go to the trouble and expense to defend against the charge of negligence. Had defendant in good faith made the...