Fields v. Metropolitan St. Ry. Co.

• Decision Date: 07 April 1913
• Citation: 155 S.W. 845,169 Mo. App. 624
• Parties: FIELDS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

155 S.W. 845

169 Mo. App. 624

FIELDS v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

April 7, 1913.

1. CARRIERS (§ 314) — PASSENGERS — INJURIES — ALLEGATIONS OF COMPLAINT.

A complaint, in an action against a street car company, alleged that the injuries received were directly caused by defendant's negligence, in this, that defendants carelessly permitted the car without warning to plaintiff to start forward suddenly and violently, when they knew or should have known that plaintiff was in the act of boarding and was in a position of imminent peril, and that defendants negligently neglected to stop the car and allow it to remain motionless for a reasonably sufficient length of time to allow plaintiff to get aboard and secure a reasonably safe foothold. Held, that the negligence alleged was in suddenly and violently moving the car forward while plaintiff was boarding and while the car was in a position making it dangerous to start it.

2. CARRIERS (§ 287) — PASSENGERS — STOPPING FOR PASSENGERS.

In absence of notice prior to the signal to start the car, street car employés need not anticipate that parties at or near a stopping place intend to become passengers.

3. CARRIERS (§ 247) — PASSENGERS — BOARDING CAR.

A street car company impliedly extends an invitation to persons at a regular stopping place to enter the car when it stops, and the relation of carrier and passenger begins at the time such person indicates his acceptance of such invitation.

4. CARRIERS (§ 287) — PASSENGERS — INJURIES — BOARDING CAR.

A street car company need only hold its car stationary for a reasonable time for a passenger to board and obtain a position of safety, not being required to wait an unreasonable time for a dilatory passenger.

5. CARRIERS (§ 287) — PASSENGERS — BOARDING CAR — SUDDEN STARTING.

Street car employés must take notice of the position of one who is attempting to board and is in such a position that the sudden starting of the car would endanger him, and are negligent if they suddenly start the car while he is in such a position.

6. CARRIERS (§ 318) — PASSENGERS — INJURIES — JURY QUESTION — NEGLIGENCE.

Evidence, in an action against a street car company for suddenly starting the car while plaintiff was attempting to board, held to show negligence by the conductor in so starting the car.

7. CARRIERS (§ 321) — INSTRUCTIONS — NEGLIGENCE.

An instruction, in an action against a street car company for personal injuries, which hypothesized facts constituting negligence in law if existent, need not require a finding of negligence by the jury; the question being one for the court.

8. EVIDENCE (§ 574) — EXPERT EVIDENCE.

Expert evidence is at best advisory, and the jury may believe the expert witness of a party as against the evidence of disinterested experts.

9. TRIAL (§ 139) — JURY QUESTION.

Where the evidence is substantial, its weight is an issue for the jury.

10. TRIAL (§ 121) — ARGUMENT — COMMENT ON EVIDENCE.

Where, in an action against a street car company for personal injuries, defendant's expert witness testified that tuberculosis was caused by a germ which would ordinarily be destroyed by a healthy body, and it appeared that plaintiff before her injury was apparently in perfect health and that tuberculosis did not manifest itself until she had suffered for a long time so as to greatly impair her physical powers, plaintiff's counsel were justified in stating in their argument that plaintiff had consumption, and that if a person was confined in bed and had the tubercular germ it aggravated the disease and "it comes not only from the accident," etc.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Minnie Fields against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and Chas. N. Sadler, both of Kansas City, for appellant. I. J. Ringolsky, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff alleges that at a time when the relation of passenger and common carrier existed between her and defendant she was injured by the negligence of defendant, and prays for the recovery of her resultant damages. The answer, in effect, is a general denial. The cause is here on the appeal of defendant from a judgment of $3,750, recovered by plaintiff in the circuit court. The points relied on by defendant for a reversal of the judgment are alleged errors in the rulings on evidence and instructions, misconduct of counsel for plaintiff, and that the verdict is excessive.

The injury occurred January 1, 1910, at the corner of Seventh street and Quindaro boulevard in Kansas City, Kan. A Jackson avenue electric car bound for Kansas City, Mo., stopped on that corner at its regular stopping place for the reception and discharge of passengers. Plaintiff, an unmarried woman 18 years of age, and two women companions, proceeded to board the car for the purpose of becoming passengers. Other passengers boarded the car at that place, and all got on in safety except plaintiff, who was the last to step on the car. She made the first step with her left foot, and with the aid of the handhold at the rear of the entrance, which she grasped with her left hand, pulled herself up so that her weight rested on the first step. While in that position, and before she had secured a safe footing, the car suddenly started forward with a jerk, followed shortly by another, and plaintiff was thrown off her balance, jerked back and forth, and swung around in a manner to cause the injuries we shall describe. As to the manner of her injury, plaintiff testified: "Well, they had all gotten on the car, and I just got my left foot upon the step and ahold of the rod, back rod, with my left hand, and stepped up on the car with that foot, the left foot, and just as I started to step up with the other foot the car started, gave one dash of power, and kind of swung me back. If it had stopped then I would have got on the car, but it gave another dash of power and threw me around. There was some gentleman standing in the back vestibule, and I had on a heavy coat, a fur coat, and my hold pulled loose, his hold rather, of my arm, and the man had ahold of my left arm, and when his hold pulled loose he grabbed at me again, as I started around the second time, and caught me and pulled me into the vestibule."

The negligence alleged in the petition is: "That said injuries to the plaintiff were directly caused by the negligence of the defendants, and their agents, servants, and employés, in this, that the defendants, their agents, servants, and employés, in charge of said electric car, negligently and carelessly caused and permitted the same, without warning to the plaintiff, to start and move forward, and to start forward suddenly and violently, when they knew, or by the exercise of due care and diligence might have known, that the plaintiff was in the act of boarding said car, and was in a position of imminent peril stepping upward and attempting to step upon the platform or step of said electric car, and that she was in danger of being thrown down and injured by the starting of said car, and that the defendants, and their agents, servants, and employés, in charge of said car, carelessly and negligently failed and neglected to stop said car and allow the same to remain motionless for a reasonably sufficient length of time to allow the plaintiff to get aboard the same and secure a reasonably safe foothold upon said car. That by reason of all of said acts of negligence and carelessness of the defendants, and their agents, servants, and employés, plaintiff was thrown violently against said car while in the act of boarding the same as aforesaid, thereby receiving the following severe and permanent injuries, to wit."

We infer from the evidence that, at first, plaintiff did not realize that she had been injured. Immediately on entering the car she had an angry colloquy with the conductor, in which she complained of his carelessness in having the car started before she had time to get on in safety and threatened to report him to the company, but she made no complaint about being injured. The conductor, who, it appears, had remained inside the car while passengers were getting on, denied the charge of carelessness, saying, "I counted my passengers...