Cooley v. Dunham

• Decision Date: 11 June 1917
• Docket Number: No. 12470.,12470.
• Citation: 195 S.W. 1058,196 Mo. App. 399
• Parties: COOLEY v. DUNHAM et al.
• Court: Missouri Court of Appeals

195 S.W. 1058

196 Mo. App. 399

COOLEY v. DUNHAM et al.

No. 12470.

Kansas City Court of Appeals. Missouri.

June 11, 1917.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by J. A. Cooley, administrator de bonis non of the estate of Orion G. Thompson, deceased, against Robert J. Dunham and another, as receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed on condition that partial remittitur be filed.

Clyde Taylor, Charles C. Crow, and Charles A. Stratton, all of Kansas City, for appellants. Gage, Ladd & Small and James L. Jones, all of Kansas City, for respondent.

TRIMBLE, J.

On the morning of August 26, 1912, Orion G. Thompson, while riding as a passenger on a car of the street railway then in the hands of the defendant receivers, was thrown to the pavement and killed. He was 23 years of age, without wife or child, either natural born or adopted, and left surviving him as his only heirs at law a father, mother, and sister. An administrator was duly appointed, and on December 23, 1912, this action was brought under section 5425, R. S. Mo. 1909, to recover the damages therein provided for a death caused by the negligent operation of a car. While the suit was pending the administrator died, and the present plaintiff was duly appointed administrator de bonis non, and the suit was properly revived. Upon a trial of the case plaintiff, on February 29, 1916, recovered a verdict and judgment for $4,833.33, and the defendants have brought the case here on appeal.

The case, as presented by the petition, is that the car was very greatly crowded with passengers, so much so that Thompson was compelled to stand upon the step of the rear platform thereof with the knowledge, consent, and approval of the conductor, who was himself standing on the rear platform, and who with the motorman, was in control of the movements of the car; that Thompson, while so standing on said rear step, was holding to the iron standard or railing of said car; that while the car thus crowded and with Thompson thus on the rear step was moving westward along Eighteenth street at a moderate rate of speed, the motorman negligently started it forward with a sudden and violent jerk which loosened Thompson's hold and threw him violently from his position on the step to the pavement, causing his death. The petition duly alleged the appointment and qualification of the receivers, and that they were in charge of the street railway at the time, and further alleged the appointment and qualification of said administrators. It also alleged the age of Thompson, that he left no wife nor child, natural born or adopted, but that he did leave surviving him a father, mother, and a sister as his heirs at law. The answer, aside from an admission as to the receivers being in charge, was a general denial.

At the close of all the evidence in the case, defendants offered a demurrer thereto which was overruled. It is urged that the court committed reversible error in so doing. This contention is based upon three grounds: (1) That the petition does not state facts sufficient to constitute a cause of action; (2) that plaintiff failed to prove negligence entitling him to a recovery; (3) that there was no proof of the specific negligence alleged, to wit, that the motorman negligently started the car forward with a sudden and violent jerk.

The claim that the petition states no cause of action grows out of the fact that there is no allegation in it to show that the persons mentioned in the petition for whom the administrator sues under the fourth subdivision of the statute have suffered a pecuniary loss — that is, have been damaged — by the death of the deceased. The point may be more clearly stated thus: Since the Supreme Court has construed section 5425 as being penal to the extent of the minimum sum of $2,000 and as compensatory for all above that amount, and since the suit is for all that the statute allows, therefore, unless the petition states facts showing that the beneficiaries under the fourth clause of the statute have suffered a pecuniary loss, it has not stated a cause of action for damages of a compensatory nature. Without going, at this point, into the question of whether the petition should have alleged facts showing that the beneficiaries, for whom the administrator sued, suffered pecuniary loss — i. e., were damaged — in order to entitle a recovery for more than the penalty allowed by the statute, we are of the opinion that such omission in the petition did not entitle defendants to have their demurrer to the evidence sustained. The petition did not, on that account, fail to state a cause of action as to the penal part of the statute. The statute certainly allows $2,000 as a penalty regardless of whether the persons for whose benefit the suit is brought have suffered pecuniary loss or not. Hence the petition did state a cause of action as to the penalty provided. But the demurrer to the evidence asserted that plaintiff was not entitled to recover anything, and, if the court had sustained it, that would have upheld such assertion. Manifestly this would have been erroneous. The demurrer to the evidence was therefore properly overruled, so far as the ground for it now under consideration is concerned. Nor can the defendants now be heard to say that the petition states no cause of action. The case presented is not one where the petition, if defective in the particular stated, wholly fails to state any case whatever.

Neither do we think plaintiff failed to prove negligence entitling him to a recovery. The evidence in plaintiff's favor tends to show that the car was very heavily crowded with passengers. The car was full, the front vestibule where the motorman stood was full, the rear platform was crowded, and one passenger was on the bumper back of the car. The entrance to the rear platform was on the north or right-hand side of the car. One step led from the ground to the rear platform, which was without any doors, so that one who boarded the car would mount this step and from there go to the platform without having to open a door. There were three passengers standing on the step and riding in that position for at least four blocks before the accident. One of these was Thompson, who was holding to the iron bar or guard. He was there when the third man got on the step. The conductor was on the rear platform during all this time, and knew of the position of deceased and the others on the step. The evidence tends to show that the men on the step could not get up into the car on account of the crowd. The car proceeded at a very slow gait, and then it suddenly gave a violent jerk which loosened Thompson's hold on the rail and threw him off, he striking the pavement upon the back of his head, which resulted in his death. There was evidence showing the sudden and violent jerk. The nature of the jerk and its effects and whether such a jerk was negligence were questions for the jury. The motorman and the conductor both knew the car was very densely crowded. The conductor knew he had passengers standing on the steps and holding on with their hands. If he chose to allow them to ride in that position, it was his duty to see that the car was managed with the highest degree of care which the circumstances called for. If the motorman did not know passengers were on the steps, the conductor should have told him. There is no evidence that he did not know it, however. What the conductor knew the motorman should have known under these circumstances. The motorman did not testify nor was any explanation given of the unusual and violent jerk. Such a jerk, suddenly occurring when the car was proceeding moderately, was prima facie unnecessary, and to cause it under the circumstances of this case was negligent. Modrell v. Dunham, 187 S. W. 561, 563; Hecke v. Dunham, 192 S. W. 120; Elliott v. Metropolitan St. Ry., 157 Mo. App. 517, 138 S. W. 663; Witters v. Metropolitan St. Ry., 151 Mo. App. 488, 132 S. W. 38; Baughman v. Metropolitan St. Ry., 177 S. W. 800. This also answers the third ground of appellants' demurrer to the evidence, namely, that there was no evidence that the motorman was negligent or that he negligently started the car forward with a sudden and violent jerk.

A reading of plaintiff's instruction No. 1 discloses that it does not assume that Thompson was on the step of the car. It required the jury to find whether he was thrown from the step. Manifestly he could not have been thrown from the step if he was not on it. Appellants' instruction No. 1 told the jury that before they could find for plaintiff they must find that deceased was standing upon the back step of the car. So that the jury could not fail to know that it was left for them to say whether he was standing on the step or not. There was very slight evidence, if any, that he was standing anywhere else. The conductor, the only witness who did not say deceased was standing on the step, merely said he "believed" deceased was in the vestibule, and that he did not "think" he was on the step. If this makes a conflict in the evidence as to where he was standing, then that was a contested issue. However, even if there is evidence only on plaintiff's side as to a necessary fact in the case, an instruction for plaintiff must not assume the existence of such necessary fact, but plaintiff's instruction did not violate the rule in this regard.

Neither does plaintiff's instruction No. 1 assume that the motorman caused...