Boggess v. Kansas City Railways Co.
| Decision Date | 07 March 1921 |
| Parties | JOHN W. BOGGESS, Administrator of the Estate of PHILLIP BOGGESS, Deceased, Respondent, v. THE KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.
AFFIRMED.
Judgment affirmed.
Francis M. Hayward and Charles H. Thompson for respondent.
R. J Higgins and Mont T. Prewitt for appellant.
This action, brought by the administrator of the estate of Phillip Boggess, deceased, is for damages for the wrongful killing by defendant of deceased. There was a verdict and judgment in favor of plaintiff in the sum of $ 2000 and defendant has appealed.
The facts show that deceased was a man nearly eighty-five years of age; that in the early afternoon of March 17, 1917, he was attempting to board a Roanoke street car of defendant, which had stopped at the usual stopping place at 9th and Main streets, in Kansas City, Missouri. The car was arranged so that passengers boarded it at the rear vestibule through folding doors and steps on the outside, which were opened and closed simultaneously by a crank in the rear vestibule. This crank was operated by the conductor. There was introduced on behalf of plaintiff but one witness to the accident, a news-boy, who testified that he was standing on the curb about 45 or 50 feet from the place of the accident selling papers when deceased came up to him and asked if a Roanoke car stopped there. At that time the car in question was approaching and the boy told deceased to "walk over there." The boy continued to watch deceased. The witness testified that deceased waited until the car stopped, at that time deceased was at the rear entrance waiting for the doors to open. When the doors were opened and the step let down deceased hesitated before getting on the car so as to be sure of his step. He then put one foot upon the step and his hand upon the handrail which ran vertically in the center of the rear vestibule next to the step. At that time a man came up and touched the witness on the right shoulder and asked him for a paper and put two cents in his hand, and, to use the witness's own language--.
Deceased was lying on the pavement "where the car was before it moved up." For a very brief period a man was between the witness and deceased but this did not prevent the witness from seeing what occurred as described above.
Defendant's testimony tended to show that the deceased came running toward the car after it had started; that when he reached it the doors were closed; the car had proceeded 6 or 8 feet; deceased attempted to hang on to a little knob attached to the body of the car on the outside of the door; he was unable to get a secure hold and fell to the pavement and the car stopped; he was not upon the steps at any time before the doors were closed and the car started.
The petition alleged that deceased had proceeded to the point of the regular stopping place of cars for the purpose of becoming a passenger on the car; that when the car stopped deceased, without delay, proceeded toward the same "put his foot upon the lower step of the back platform of said car and was in the act of putting his hand upon the handrail of said car, and his other foot upon the step of said car, when the conductor of defendant, in charge of said car, carelessly, negligently, suddenly and violently closed the door of said car and raised up to step to said platform of said car, and swept Phillip Boggess off said step, and caused said car to start, whereby plaintiff alleges that said Phillip Boggess was thrown off said step and upon the pavement." Plaintiff's instruction No. 1, after having the jury find the facts leading up to plaintiff's reaching the car, told the jury that if they further found that as deceased "put his foot on the lower step . . . and was in the act of putting his hand on the handrail of said car and his other foot upon the step, * * * the conductor of defendant, in charge of said car carelessly and negligently closed the door of such car and swept" deceased "off said step and caused the car to start and thereby threw" deceased "off said step and upon the pavement and broke his hip," and that deceased "died from the injuries so received," their verdict should be for the plaintiff.
Defendant's first contention is that its demurrer to the evidence should have been sustained for the reason that plaintiff's evidence fails to show any negligence on the part of the defendant and that the cause of the death so far as plaintiff's evidence is concerned is left to conjecture that plaintiff introduced no witness who saw what occurred after deceased put his foot upon the step with the apparent intention of boarding the car; that the jury under the evidence could not infer facts not shown by direct evidence to the effect that the step was folded up, that the doors were closed, that the conductor gave a signal for the car to proceed while deceased was in the act of boarding the car, and that deceased was thrown by the movement of the car. In this connection it is insisted that in order for the jury to infer all these things it must build inference upon inference, which is forbidden, and that, in view of the fact that there was evidence as to what actually occurred, the jury should not indulge in any presumptions or inferences necessary to piece out a case for plaintiff...
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