Conway v. Metropolitan Street Railway Company

• Decision Date: 22 January 1912
• Citation: Conway v. Metropolitan Street Railway Company, 142 S.W. 1101, 161 Mo.App. 81 (Kan. App. 1912)
• Parties: EVAL. CONWAY, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

142 S.W. 1101

161 Mo.App. 81

EVAL. CONWAY, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 22, 1912

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

John H Lucas and James E. Nugent for appellant.

(1)The court erred in not sustaining demurrer asked by the defendant at the close of the plaintiff's case.Quinn v Railroad,218 Mo. 545.(2)The court erred in excluding testimony offered by the defendant.Ayers v Railroad,190 Mo. 235;Anderson v. Railroad,161 Mo. 411.(3)The court erred in not sustaining the motion for a new trial.Howland v. Reeves, 25 Mo.App. 458.

M. J. Oldham and L. S. Kenworthy for respondent.

(1)The court did not err in refusing to sustain demurrer asked by defendant at the close of plaintiff's case.Dougherty v. Railroad,9 Mo.App. 478;Meriwether v. Railroad,45 Mo.App. 528;Dougherty v. Railroad,81 Mo. 325;Worthington v. Railroad,72 Mo.App. 167;Benjamin v. Railroad,50 Mo.App. 602;Russ v. Railroad,112 Mo. 45;Miller v. Railroad,125 App. 417;Lehner v. Railroad,110 Mo.App. 220;Shanahan v. Transit Co.,109 Mo.App. 231;Kohr v. Railroad,117 Mo.App. 302;Thompson v. Railroad,111 Mo.App. 473.(2)The court did not err in excluding testimony offered by defendant.Russ v. Railroad,112 Mo. 45;Benjamin v. Railroad,50 App. 602;O'Neal v. Kansas City,178 Mo. 91.The court did not err in refusing to sustain the motion for new trial filed by defendant.Haynes' New Trial, section 87;Oldham v. Henderson,4 Mo. 295;State v. Floyd,15 Mo. 349;Cook v. Railroad,56 Mo. 380;Beauchamp v. Sconce,12 Mo. 57;Dollman v. Munson,90 Mo. 85;Blakev. Ins. Co., 133 App. 16;Ford v. Storage, M. & P. Co., 138 Mo.App. 512.

OPINION

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries she alleges were caused by negligence of defendant.The jury returned a verdict in her favor and, after its motions for a new trial and in arrest of judgment were overruled, defendant appealed.

The injury occurred in the evening of August 5, 1909, at the intersection of Oak and Twelfth streets in Kansas City.An eastbound electric car on defendant's Twelfth street line stopped at this intersection to discharge and receive passengers and plaintiff was one of four or five persons who boarded the car for the purpose of becoming passengers thereon.Plaintiff was the last of these passengers with the exception of one, a negro, who boarded the car as it started forward.The car was of the pay-as-you-enter type and the rear vestibule was partitioned by a perpendicular iron rod.The division next the car was used as the exit and the other division as the entrance.The conductor stood in the first mentioned compartment and collected fares from entering passengers.The car and vestibule were crowded and as plaintiff started to step up to the vestibule, the conductor invited her to come into the exit which was less crowded than the other part of the platform.As she was in the act of stepping from the top step to the platform and was aiding herself by the handholds at either side, the car suddenly started forward and she was thrown to the pavement and injured.The allegations of negligence appear in the following extract from the petition:

"That it was the duty of the defendant, its servants, agents and employees, to hold said car at a standstill until the plaintiff, in the exercise of ordinary care and diligence, had a reasonable opportunity to board said car in safety; that the defendant, its servants, agents and employees, engaged in operating said car at said time and place, and acting in the scope of their employment, carelessly, negligently and unskillfully, set said car in motion at said time and place while plaintiff was in the act of boarding said car aforesaid and throwing said plaintiff violently to the street and pavement thereof and injuring her as hereinafter set out.

"That the servants, agents and employees of defendant in charge of said car aforesaid, saw or by the exercise of ordinary care and diligence could have seen plaintiff in a position of danger and peril attempting to board said car at said time and place in time to have refrained from the starting of said car until the plaintiff had boarded same and thus prevented injuring plaintiff.That the servants, agents and employees of defendant in charge of and operating said car at said time and place, negligently, carelessly and unskillfully, failed and neglected to give any signal or warning to plaintiff of their intention to start or set said car in motion.That by reason of the foregoing carelessness, negligence and unskillfulness of the defendant, its servants, agents and employees aforesaid, and as a direct result thereof, plaintiff was thrown and hurled from said car to the street and pavement thereof and plaintiff received the following permanent injuries, to-wit:"

The answer is a general denial.The evidence of defendant tends to show that plaintiff's fall was caused by her attempt to board the car after it had started, but for the purposes of the demurrer to the evidence which defendant argues should have been given, we shall consider the case from the viewpoint of plaintiff's evidence which we find to be substantial.

The gist of the negligence alleged is not in starting the car with unusual violence and thereby injuring a passenger who had reached a place of safety, but in starting the car before the incoming passenger, exercising ordinary care and expedition, had reached a place of safety and thereby putting the passenger in a position of danger.In its essential features the case pleaded and proved by plaintiff bears little resemblance to that of Quinn v. Railway,218 Mo. 545, relied on by defendant, but is more analogous to that of Miller v. Railway Company,125 Mo.App. 414 decided by this court.In the Quinn case the passenger voluntarily assumed a less secure position after he had reached one of safety and was injured by a sudden and violent lurch of the car.Here there was no unusual movement but the passenger was thrown by an ordinary forward motion while she was ascending the steps and had not yet obtained a secure footing on the platform.Plaintiff became a passenger the instant she started to board the car and it became the duty of the operators of the car not to start it until she had been given a reasonable opportunity to reach a place of comparative safety which, in this instance, owing to the crowded condition of the car, meant a place in the rear vestibule where she could stand and support herself by using the handholds.The jury were entitled to draw the inference that plaintiff was injured by a premature start of the car while she was in an insecure position and that the...