Fields v. Metropolitan Street Railway Co.

• Decision Date: 07 April 1913
• Citation: 155 S.W. 845,169 Mo.App. 624
• Parties: MINNIE FIELDS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

155 S.W. 845

169 Mo.App. 624

MINNIE FIELDS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 7, 1913

Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas and Chas. N. Sadler for appellant.

Joseph P. Aylward, I. J. Ringolsky and Harry L. Jacobs for respondent.

OPINION

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 $ 3750, 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, Kansas. A Jackson avenue electric car bound for Kansas City, Missouri, stopped on that corner at its regular stopping place for the reception and discharge of passengers. Plaintiff an unmarried woman eighteen 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 hold 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 employees, in this, that the defendants, their agents, servants and employees, 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 employees, 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 employees, 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 and they were all on," and followed this assertion with some angry comment when a male passenger interfered and ended the quarrel. Plaintiff seated herself and in a short time began to suffer pain in various portions of her body and to feel sick. She and her companions left the car at Twelfth and Main streets intending to transfer to a westbound Twelfth street car to go to the Washington hotel where plaintiff was living with her foster father. At this time she was so ill that her companions helped her into a drug store and gave her a drink of water to revive her. When the Twelfth street car arrived she was in such a helpless condition that they procured assistance to put her on the car. She became unconscious before reaching her destination and was carried to her room in the hotel where she remained unconscious three days. She was confined to her bed six weeks and after that went around on crutches for two months. It is conceded that she is a nervous wreck and a confirmed invalid but defendant denies that her condition was caused by any injury received in boarding the car and insists that it is due to natural causes, among them acute tuberculosis with which it appears she is afflicted.

Plaintiff contends, and is supported in the contention by substantial evidence, that before her injury she was in prime health and vigor; that she did not become a victim of tuberculosis until after she had become an invalid and that lodgment was given to that dreadful disease through the serious impairment of her vital forces by the consequences of her injury.

The physician who treated plaintiff thus described her condition at the time of his first visit:

"She was in her bed and in convulsions, and it was impossible to arouse her to a realization of anything, to arouse her from the unconsciousness. She was in these convulsions, she was as rigid as a board, and head bent away back and the lower limbs, the arms and hands and fingers were all stiff as could be, could not move a finger even. . . . She didn't awaken to any realization of what was going on that evening and I think it was two days, and possibly three before she did come to herself enough to know where she was and know any of her friends. . . . they (the pains she complained of) were very general, mostly at first over the left side, the head, the arm and the left side, I think as far down as the hip, and the worst of all the pains, as I remember it now, was on the right side in the lower right groin, I mean in the right groin low down. . . . I found every evidence of a rupture there . . . it was a separation of the muscles here something like I would spread my two fingers apart, with a bulging through of the bowel between that weakened point of the muscles."

"Q. Describe to the jury what her condition is physically as you know it from doctoring her since January 1, 1910. A. Well aside from the rupture the nervous prostration has been the worst feature in the case, complete breakdown . . . she has been what I would term a physical and nervous wreck all the time. The complications I refer to were female troubles, headaches and disturbances of the heart and organs of...