Fletcher v. Kansas City Rys. Co.

• Decision Date: 10 May 1920
• Docket Number: No. 13342.,13342.
• Parties: FLETCHER v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

221 S.W. 1070

FLETCHER v. KANSAS CITY RYS. CO.

No. 13342.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Appeal from Circuit Court, Buchanan County; Lawrence A. Vories, Judge.

"Not to be officially published."

Action by Laura Fletcher against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Guitar & Innis, of St. Joseph, R. J. Higgins, of Kansas City, Kan., and E. E. Ball and Chas. N. Sadler, both of Kansas City, Mo., for appellant.

Mytton & Parkinson, of St. Joseph, and Morrison, Nugent & Wylder, of Kansas City, Mo., for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injuries received on one of defendant's street cars while a passenger thereon. She recovered judgment in the trial court.

The action accrued and was brought in Jackson county, but the venue was changed to Buchanan. Since the verdict was for the plaintiff, we will direct our attention particularly to what the evidence in her behalf tended to prove. The car stopped to receive passengers at a regular stopping place on Main street near the Union Station in Kansas City. Plaintiff with her three children and husband got on the rear of the car, the latter paying the fare. The car had a vestibule or platform entry from which passengers stepped up into the car proper. Next to the vestibule was a seat, on either side, running lengthwise with the car, and on one of these plaintiff was in the act of sitting, when, before she had reasonable time to sit down, the motorman suddenly and violently, with a jerk, started the car forward, throwing her back into the vestibule onto the floor, breaking her arm, and bruising and injuring her body at various places. Plaintiff's testimony was amply corroborated by other witnesses.

Defendant presented a demurrer to the evidence which was properly overruled.

Plaintiff asked and obtained eight instructions, and twelve were given for defendant. Those for defendant liberally covered every phase of the defense. Objection is made to plaintiff's instruction No. 2, in that it is claimed there was omitted an element of negligence charged in the petition. It is alleged that defendant "negligently and carelessly caused and permitted said car to be moved and jerked in a sudden, violent, and unusual manner, thereby causing plaintiff to be thrown," etc. The instruction reads that defendant "negligently caused said car to be moved and jerked in a sudden and violent manner, thereby causing plaintiff to be thrown," etc. The point made is that the instruction omits the word "unusual" which is included in the charge stated in the petition, and that it thereby required less proof than the breadth of the petition required. We are cited to Simms v. Dunham, 203 S. W. 652, Boles v. Dunham, 208 S. W. 480, Kirn v. Harvey, 200 Mo. App. 433, 208 S. W. 479, and others of like kind, but think them not applicable.

We think the criticism is not sound. The instruction submitted that if defendant "negligently caused said car to be moved and jerked in a sudden and violent manner." To say that such language does not include an unusual manner is to admit that defendant, a public utility, habitually negligently started its cars suddenly with a violent jerk.

Again, it is said that the instruction, while directing a verdict, omits to include the hypothesis of plaintiff's contributory negligence. Proof of contributory negligence is not a part of plaintiff's case, and therefore, when omitted from a plaintiff's instruction, it may be cured by the defendant's instruction on that head. In this case defendant's instructions Nos. 14, 15, and 16, included that hypothesis. Riegel v. Biscuit Co., 169 Mo. App. 513, 517, 155 S. W. 59.

Other objections are suggested in the brief, but they are without merit. The instruction is a clear submission of plaintiff's case.

Plaintiff's instruction No. 6, on the subject of measure of damages, is claimed to be erroneous on authority of Davis v. Railroad, 188 Mo. App. 128, 176 S. W. 1067, 1072. The cases are wholly unlike. In that case there was but one short instruction in the case, and that was on the measure of damages; while here, as we have seen, numerous instructions submitted the different phases of the entire case.

Instructions C and D, offered by defendant, were properly refused. The first one called attention to the fact that one of the parties to the controversy was a corporation, but that should not affect the verdict, and that there should be no sympathy in favor of the plaintiff, and that no favor should be shown on account of the relative financial...