Foster v. Kansas City Rys. Co.

• Citation: 235 S.W. 1070
• Decision Date: 19 December 1921
• Docket Number: No. 22455.,22455.
• Parties: FOSTER v. KANSAS CITY RYS. CO.
• Court: United States State Supreme Court of Missouri

235 S.W. 1070

FOSTER v. KANSAS CITY RYS. CO.

No. 22455.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

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

Action by Dorothy Foster, by Leonard Foster, her next friend, against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles N. Sadler and Louis R. Weiss. both of Kansas City, for appellant.

S. L. Trusty, E. H. Gamble, and McCanles, Kennard & Trusty, all of Kansas City, for respondent.

SMALL, C.

I. Suit for personal injury by plaintiff, an infant 4½ years of age. She was run over by one of defendant's electric street cars. The accident occurred in Kansas City, Kan., on October 7, 1918, at or near the intersection of Thirty-First street and Reynolds avenue. It was in the daytime and the track was dry and nearly level. There were double tracks on Thirty-First street, running east and west. The plaintiff was struck by a west-bound car on the north track. The evidence of plaintiff tended to show that the child's mother, Mrs. Mary Foster, had accompanied a lady friend, Mrs. Campbell, to the street car line to take an east-bound car at Reynolds avenue; that the entrance for passengers on said eastbound car was at the rear or west end thereof; that while Mrs. Foster was assisting Mrs. Campbell to enter said east-bound car, and while it was standing still, the plaintiff left her mother's side and went around the west end of said car, passed over the track it was on, and went upon the north or adjoining track. Mrs. Foster then looked about and saw a west-bound car coming on the north track, about 1½ car lengths east of the east end of the standing car. She then looked around for her child and saw her standing in the middle of the north track with her back to her mother. At the time Mrs. Foster saw plaintiff, the west-bound car was still a half car length east of said standing car. The cars were 45 or 50 feet long. This would indicate that the plaintiff was in the middle of the north track when said approaching west-bound car was about 60 to 75 feet east of her. There was nothing then there to obstruct the motorman's view of her. As soon as Mrs. Foster discovered her child, she called and started toward her. The child turned toward its mother and took about two steps, when she was struck by said west-bound car and injured. The car which struck her ran about its full length before it stopped. Plaintiff also introduced a rule of defendant requiring motorman to stop before passing a standing car, to which defendant objected and excepted. Plaintiff's testimony also tended to show that the said car which struck plaintiff was running about 15 or 16 miles per hour as it approached and passed the standing car, and could have been stopped within 15 feet. Defendant's evidence tended to show said car was running only about 8 miles per hour and could have been stopped in 40 feet, and that if it was running 15 or 16 miles an hour it would require 80 or 90 feet in which to be stopped. The conductor on the west-bound car testified for defendant that the car had stopped at Reynolds avenue and he let off several passengers, and just after he gave bells to start. and it started up, it stopped again so suddenly that he was thrown to the floor. He arose and ran out and found the little girl lying in front of the wheels of the rear truck. There was no other evidence offered by defendant to contradict the testimony for plaintiff in material matters.

As to plaintiff's injuries:

The mother testified:

When I picked her up, her head, forehead, and arm were all torn and bruised; she was just torn and bruised all over; bleeding. There were some concrete steps near by on which I sat down withher. The conductor of the standing car came to me and said he would take me to where I could get a doctor. He took me to Eighteenth and Central, and the doctor was not in, and so they called a grocery truck and took me to Bethany Hospital. There the doctor (Dr. Rieger) showed me where her foot was mangled and two toes crushed until they were flat. The others were cut until they hung down. He showed me where he could take them off, back of the spring of her foot, if the flesh was not bruised too much, and leave her a stub to walk on. It was bruised to her knee, until it was as black as my coat. He performed one operation. It healed finally, after about four months. It was so bad it was the latter part of November before he would let me see it. She was in the hospital 13 days. After that I took her in a conveyance to the doctor each day, until about the middle of December. She walked on crutches in January, but it was along early in the spring before she could put her foot on the floor and bear her weight on it. Her foot now is nothing but a stub. She walks with a limp all the time. We have to keep the toe of her shoe cut out. The flesh is tender, and it blisters on the end of the foot. Once in a while, for a little while, she wears a shoe without the toe cut out; she has cramps, knots come upon her leg, and I have to rub them out. There are times she cannot walk for them. Her limb seems to be drawn until she doesn't have the use of it in either the knee or ankle; this happens probably three or four times a month.. She sometimes gets hysterical. She will laugh and cry at the same time. This is something she never did before; she will become jerky, and in the night, especially, I often go to her and have to talk to her and wake her up. She just jerks. Her foot has never kept still since it was hurt; it is continuously this way all night long (illustrating). I slept with her for over a year when she was never out of my arms, and her foot is this way (illustrating) continually. Her face and her arms and both of her legs were torn with the fender.

Cross-examination:

Dr. Rieger was the only doctor who attended her. He amputated those toes the same day. Her toes are amputated back past the spring of her foot. She does not walk at all times on the sole of her foot; she walks on the side a great deal. Her foot is off; that is all there is to that; it is back farther than the toes. She walked on crutches for a couple or three months. Then she discarded her crutches. She limps, but walks on that foot all the time. Once in a while she runs on it. She commenced using crutches the latter part of November or first of December.

At this point plaintiff's counsel was permitted to have the plaintiff exhibit her right foot to the jury. The plaintiff's father saw her after her foot had been operated on that evening at the hospital, and his testimony generally corroborated that of the mother as to the plaintiff's condition after the operation.

Dr. Rieger testified that —

In October, 1918, he first saw plaintiff, and she was at the Bethany Hospital. Her foot was crushed; about a third of the foot was just crushed, and the toes and back of the toes was just mangled so that the toes were hanging and some were off, just mashed. I performed what we call in medical language the "Shopart" operation. That is where we try to save half the foot so they walk on the heel and foot; that takes you back of the spring of the foot that is gone. I cut off about a third of the foot, a little more probably. Plaintiff was in the hospital about two weeks, and afterwards she came to his office with her mother for treatment, for a considerable time. He saw her last about a year ago. There is a limitation of motion there; don't know whether it will become greater or less as she grows older. She will always walk with a limp and she will have no spring. It will be walking on her heel bone principally. That condition is permanent.

The doctor also testified, in answer to hypothetical questions, that —

The nervousness and trembling of the body, crying out at night, and other symptoms of the plaintiff, testified to by her mother, might or could have been caused by the injuries she received in being run over by the car. Outside of that foot, she is a healthy child.

There was other evidence of neighbors to corroborate the testimony of the mother as to plaintiff's injury and the liability of the plaintiff to run or walk without limping and as to the drawing up of and the cramp in her leg and nervousness and restlessness.

The petititon presented plaintiff's case both on ordinary negligence (so called), and the humanity doctrine. The petition also pleaded the violation of the rule of the company requiring motormen to bring cars to full stop when passing standing cars, at point where cars stop.

The answer was a general denial, and it also pleaded certain decisions of the Supreme Court of Kansas, which, however, need not be further noticed, as no point is made thereon on this appeal.

On behalf of the plaintiff, the court instructed the jury as follows:

"P-1. The court instructs the jury that if you believe from the evidence that on or about October 7, 1918, one of the defendant's east-bound cars was stopped and standing for the purpose of taking on passengers at the intersection of Thirty-First and Reynolds avenue in Kansas City, Kan., and that at said time and place the plaintiff, Dorothy Foster, was a child 4½ years of age and was with her mother, who was assisting a relative to board said east-bound car, and if you further believe and find from the evidence that while said east-bound car was so standing at said intersection, the plaintiff, Dorothy Foster, moved from a place of safety near said car and went upon the west-bound track of defendant, and that while she was so upon said west-bound track, if she was, the west-bound car referred to in the evidence passed said standing car at a rate of speed of 14 or 15 miles per hour, and if you further believe and find from the evidence that such rate of speed was dangerous and not reasonably safe at said time and place, and that in operating said car at said speed, if it was so operated, the defendant was guilty of...