Briscoe v. Metropolitan St. Ry. Co.

• Decision Date: 01 July 1909
• Parties: BRISCOE v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

120 S.W. 1162

222 Mo. 104

BRISCOE v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

1. TRIAL (§ 34)—ADMISSIONS IN PLEADINGS —INTRODUCTION IN EVIDENCE—NECESSITY.

In order that an abandoned pleading may be taken as an admission of the pleader, it must be put in evidence in the same manner as any other admission.

2. CARRIERS (§ 316)—INJURIES TO PASSENGER—PRESUMPTIVE NEGLIGENCE.

Whenever something unusual occurs in the operation of a public conveyance carrying passengers for hire, proof of such fact and of a consequent injury to a passenger raises the presumption of negligence.

3. CARRIERS (§ 316)—STREET RAILROADS—INJURIES TO PASSENGER—PRESUMPTIVE NEGLIGENCE—SUFFICIENCY OF EVIDENCE.

In an action against a street railroad for injuries to a passenger, plaintiff's evidence showed that defendant's cable car on which plaintiff was riding made an unusual and violent stop, so that the glass in the windows of the car was shattered and plaintiff was thrown against a stove; that another passenger was thrown against a window with such force as to not only break the glass, but to bend the protecting bars; and that the car was run over the crossing at the full speed of the cable, which, according to defendant's testimony, was violative of its rules. There was also evidence tending to show that an iron plate which was along the side of the cable conduit was struck by the grip shank and dented. Held to make out a case of presumptive negligence.

4. CARRIERS (§ 321)—STREET RAILROADS—INJURIES TO PASSENGERS—INSTRUCTIONS.

In an action against a street railroad for injuries to a passenger through the sudden and violent stopping of the car on which plaintiff was riding, an instruction that if the car was permitted to come to an unusually abrupt, violent, and unexpected stop, and plaintiff was injured thereby, it would be presumed, in the absence of evidence to the contrary, that the stop was caused or permitted through the negligence of defendant, and that it then devolved on defendant to show by a fair preponderance of the evidence that the stop was not caused or permitted through its negligence, was proper.

5. NEGLIGENCE (§ 63)—"ACCIDENT."

An "accident" is such an unexpected casualty as occurs without any one being to blame for it; that is, without anybody being guilty of negligence in doing or permitting to be done, or omitting to do, the particular things that caused such casualty.

6. APPEAL AND ERROR (§ 232)—QUESTIONS NOT CALLED TO ATTENTION OF TRIAL COURT.

A ground of objection to evidence not called to the attention of the trial court will not be considered on appeal.

7. DAMAGES (§ 130)—PERSONAL INJURIES— EXCESSIVE DAMAGES.

In an action against a street railroad for injuries to a passenger through the sudden and violent stopping of a cable car, a verdict of $5,000 held excessive under the evidence, $3,000 being sufficient to compensate plaintiff.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by John H. Briscoe against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed if plaintiff within 10 days remit $2,000 from the judgment, otherwise reversed and remanded.

Bird & Pope and T. J. Madden, for appellant. John H. Lucas, for appellee.

GRAVES, J.

Action for personal injuries. Verdict and judgment for $5,000 in favor of plaintiff, from which defendant appeals. This case at one time reached the Kansas City Court of Appeals, by which for errors it was reversed and remanded. 118 Mo. App. 668, 95 S. W. 276. Thereafter an amended petition was filed, upon which the trial involved in this appeal was had. The material portions of this amended petition, omitting formal charges and charges as to the character of the injuries are:

"That on or about February 3, 1902, and at about the hour of 4:20 o'clock p. m. of said day, plaintiff was a passenger upon one of the west-bound cars of said defendant on said Fifteenth street line, and while he was in the act of taking a seat in the coach of said car and while said car was moving over the tracks of the Kansas City Belt Railway Company's crossing, or what is known as the `Belt Line crossing,' said car came to an unusually abrupt, violent, and unexpected stop, and by reason thereof plaintiff was thrown with great force and violence against the stove in said car and to the floor of said car, and was thereby seriously injured. * * * That said injuries were caused through the carelessness and negligence of said defendant, its agents, servants, or employés, in that said car was caused or permitted to come to an unusually abrupt, violent, and unexpected stop or collision, on or near the Kansas City Belt Line crossing, whereby plaintiff was suddenly and violently thrown against the stove and upon the floor of said car."

Answer was a general denial and plea of contributory negligence. Reply, general denial. The injury sued for in this case occurred February 3, 1902. Plaintiff at the time was assistant superintendent of the Colonial Security Company, as well as a solicitor for the same. Such company seems to have been of a questionable character as a business proposition for the investors in its contracts or bonds. Plaintiff was earning about $35 per week in this dual capacity. On the evening of February 3, 1902, at about 4 o'clock, the plaintiff took passage upon one of the defendant's cable trains going west on its Fifteenth street line. He got on the train at Cleveland avenue to the east of the point where defendant's street car tracks crossed the tracks of the Belt Line Railway Company. From Cleveland avenue to the crossing of the tracks is about a block and a half. Plaintiff says that when he got on the platform of the car he had trouble in getting the door of the car to open. That the car was almost stopped just before it reached the Belt Line tracks, but started up again at the full speed of the cable. That after he got into the car he started toward the stove to get a seat, when all at once the car came to a sudden and violent stop, by which he was violently thrown against the stove and knocked thereby back to the floor of the car. From this fall he received the injuries sued for herein, which will be noted more in detail later. Plaintiff says that the sudden stop of the car was so violent as to break out all the window lights. He also says that one Peeples was standing on the platform of the car. This witness described the movement of the car in this language:

"Q. Where did you get on the car? A. I got on the car on the east side of the track the car stopped on—the east side of the track right where I was standing. Q. Where was the front end of the car when it stopped on the east side of the track with reference to the Belt Line tracks? A. It was right about the first rail of the Belt Line tracks near the east side, as near as I can remember. Q. What kind of a stop was made there when you got on—describe it? A. Well, I don't know about that—they stopped is all I know —pulled up there and stopped. * * * This time they stopped and I stepped on, and they moved about 20 feet pretty rapid gait and stopped dead still. Q. That was the second stop? A. Yes, sir. Q. Where was the second stop? A. That was right in the center of the tracks—the car was right—set over both tracks. Q. Where was the front end of the car with reference to those tracks at the second stop? A. That was over the second track—the west track. Q. Now describe that second stop as to force and suddenness and what happened. A. Well, they stopped dead still and I had stepped up on the platform and was still facing south, and had not turned to get in the car, and my shoulders and head went through the window and I went down in the corner, and cut me a little here, and I was bruised up a little. Q. What effect did it have on the windows of the car? A. It broke the window—shattered it all to pieces and bent the rods."

He also said he thought the car was going the full speed of the cable when it suddenly stopped, and that he did not know whether other windows were broken or not, except the one against which he was thrown. After the accident he was called by two acquaintances to a nearby dram shop, and took solace by imbibing a drink of whisky, and this perhaps accounts for the fact that he failed to see plaintiff, as he says he did not see plaintiff at the time.

The flagman for the railroad company also testifies to the sudden stopping of the car. Plaintiff offered some evidence tending to show that the grip on the car struck an iron plate which was along the side of the cable conduit and indented that place. That immediately after the accident, workmen for the defendant sawed off the corner of this plate.

Defendant's testimony tends to show the plaintiff had been in the car ample time to have gotten a seat; that there were only two or three passengers on the car; that the employés, five or six in number, who examined the situation just after the accident, found no cause for the car stopping; that only the one window on the east end was broken; that there was a bent "kingbolt." On cross-examination of the gripman who was in charge of the car, this "kingbolt" is thus spoken of:

"Q. Will you please, Mr. Riner, tell the jury where that bolt was? A. The kingbolt is right back of the grip—the small iron pin that goes down and helps hold the grip hanger in place and kept it from sliding sideways. Q. Is the kingbolt down in the conduit or above? A. It is above. The gripman could put his hand on it or foot—the bolt is a small rod. Q. How big a bolt was that? A. Well, it is only about 18 inches long. It is just a small bolt in diameter, not very big. Q. How big? A. Oh, possibly a half an inch or less— possibly three-eighths. Q. And that kingbolt was bent? A. Yes; bent to one side enough to throw the grip out of plumb. The grip has to hang just plumb or it won't hold the rope—when you bring it up and let it go. Q. Y...