Chapman v. Kansas City Rys. Co.

• Decision Date: 20 December 1919
• Docket Number: No. 20538.,20538.
• Parties: CHAPMAN v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

217 S.W. 290

CHAPMAN v. KANSAS CITY RYS. CO.

No. 20538.

Supreme Court of Missouri, Division No. 1.

December 20, 1919.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action between Eugene B. Chapman against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. R. J. Higgins, of Kansas City, Kan., and Chas. N. Sadler, of Kansas City, Mo., for appellant.

H. G. Pope and T. J. Madden, both of Kansas City, Mo., for respondent.

GOODE, J.

Action to recover damages for an injury to plaintiff, alleged to have been caused by the negligence of defendant. According to the testimony for plaintiff, his own and that of corroborating witnesses, the circumstances of the accident were these:

Between 1 and 2 o'clock in the afternoon of Sunday, November 30, 1913, plaintiff started from a residence, No. 3433 Euclid avenue, owned by him and where his mother had previously lived (though at the time of the accident his children were living at 3701 Wyandotte street), to visit his mother, who was then residing with the family of a Mr. Chamberlain at Forty-Fourth street and Virginia avenue. Those three places are in Kansas City and the accident happened there. Plaintiff was absent from the city a great deal, and for that reason his mother, who was old, had gone to live with the Chamberlains, where she could receive better care. Plaintiff carried with him, on his way to visit her, two bed comforts, rolled into a bundle 3 feet long and 1½ feet in thickness, which he was taking to her. He walked from 3433 Euclid avenue to Brooklyn avenue and Thirty-Fourth street, intending to take a car going northward on Brooklyn to Thirty-First street, where he would transfer to another car going west to Troost avenue, where he would again transfer to a car going south to Forty-Fourth street, and there leave the car and walk a short distance to the Chamberlain home. There is a steep grade on Brooklyn avenue, both north and south of Thirty-Fourth street; that is to say, Thirty-Fourth street is at the foot of two steep grades, which make it difficult for cars running on Brooklyn avenue to stop exactly at the right place for passengers to board them, and sometimes they ran past the usual stopping place when they reached the corner, and received passengers after passing; also while moving slowly. When plaintiff reached the southwest corner of Brooklyn and Thirty-Fourth street, he looked to the south to see if a northbound car was approaching, and, seeing none, walked diagonally across to the northeast corner of the streets, deposited his bundle in front of a drug store on the corner, or near it, went into the drug store to buy some stamps, came out and dropped some letters into a mail box, six or eight feet from the entrance of the drug store, saw the car he wished to take coming down the hill south of Thirty-Fourth street, picked up his bundle, stepped down from the curb, and walked on Brooklyn avenue across Thirty-Fourth street to a point a car's length south of the south line of Thirty-Fourth street, to where the rear end of the car would be if it stopped at the place where passengers usually were taken on and discharged. As he expressed it, he stopped at the usual "getting on place."

It had rained the night before, the street and tracks were wet, and for that reason, or because the crew did not want to receive passengers, the car did not stop at the usual place, but moved slowly northward, and plaintiff followed it until the rear end was in the middle of Thirty-Fourth street, when he stepped into the vestibule of the car. One passenger stepped off the car at Thirty-Fourth street while the car was in motion. The car was a "pay as you enter" one, but, instead of dropping the fare into a slot, a passenger would hand it to the conductor, who stood behind a railing facing the rear end of the vestibule. Plaintiff had been carrying his bundle in his right hand, but shifted it to his left hand before boarding the car, or just afterwards. He dropped or pitched this bundle onto the floor, and thrust his right hand into a pocket to take out his fare. As he dropped the bundle and reached into his pocket, the conductor said to him ("hollered" or "yelled," the plaintiff testified), "This car goes to the barn." This fact did not matter to plaintiff, as the car would pass the point of his first transfer, and he would have remained on, he said, if his bundle had not been kicked off by the conductor. The bundle had struck the conductor when plaintiff dropped it, and simultaneously with the conductor's remark, or with plaintiff's answer to it, to be immediately stated, the conductor kicked the bundle out of the vestibule, and it fell near the east curb of Brooklyn avenue, in front of a bakery at the third door from the corner; the first entrance being to the drug store and the second to a cleaning and dyeing establishment Plaintiff answered the remark of the conductor by saying, "Why didn't you tell me so at first?" and then added, "If you will stop the car, I will get off."

Plaintiff stepped out of the vestibule onto the step of the car, holding, as he did so, to an upright rod with his left hand, and intending to step to the street. The car was then moving 4 or 5 miles an hour. At the instant his foot was on the step the conductor rang the bell twice, the speed of the car was rapidly accelerated, plaintiff was thrown to the street on his hands and knees—"skidded along the street," he says, with his body at an angle with the curb. Again he says his feet struck the ground, he "bounded," and then fell. He was seen by two or three persons in the act of getting up, and when he was on his hands and knees; was helped up by a man, who walked with him to his lodging place, 3433 Euclid avenue, and left him. Plaintiff stayed there a few hours, and then, in accordance with his original purpose, went to visit his mother at the Chamberlain home. The next day he consulted a physician about his injuries, and sooner or later was examined by several physicians and treated by several; had attention of one kind or another from as many as six physicians. Plaintiff's injuries, as testified to by himself and by some of the physicians, were very serious, but need not be related.

For the defendant the evidence goes to show passengers would be received on the car at proper places, though it was to be turned into the barn at the end of the run; that the speed had been reduced at Thirty-Fourth street to four or five miles an hour because of the passage of another car, and that it was immediately increased; that plaintiff never boarded the car, but ran along beside it for some distance, having put one end of his bundle in the vestibule; that he did not even take hold of any part of the car, and finally abandoned his attempt to get on, and the conductor lost sight of him for an instant, and then saw him standing in the street. No bells were rung while he was following the car, either to stop, start, or increase speed, and no conversation transpired between the conductor and him; the conductor was in the body of the car, and not in the vestibule. The impression toward which this testimony, if believed, would incline one, is that plaintiff stumbled and fell while walking or running alongside the car, with one end of his bundle lying inside the vestibule, but without his having entered or come in contact with the car.

Two usages of defendant are averred in the petition: First, to "slow down" the speed of cars to discharge and receive passengers, and to discharge them while the car was thus moving; second, for a motorman to accelerate" or resume his ordinary speed upon receiving a "go-ahead" signal from the conductor, and not to do so until he received such signal. The negligence alleged in one part of the petition reads as follows:

"Plaintiff advised said conductor that if he, the conductor, would stop the car, he, the plaintiff, would get off, and said conductor assented thereto, and as said car was moving slowly plaintiff stepped upon the steps of said car, preparatory to alighting therefrom when said car should come to a...