Gardner v. Metropolitan St. Ry. Co.

• Decision Date: 25 November 1912
• Parties: GARDNER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

152 S.W. 98

167 Mo. A. 605

GARDNER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

November 25, 1912.

Rehearing Denied December 31, 1912.

1. APPEAL AND ERROR (§§ 259, 301)—NECESSITY OF EXCEPTIONS — RULING ON COMPETENCY OF JURORS.

Where there is no exception to the language of the court in passing upon the competency of certain jurors, nor any reference to it in the motion for a new trial, it cannot be considered.

2. APPEAL AND ERROR (§ 1045)—HARMLESS ERROR — QUESTIONS ON SELECTION OF JURORS.

Where defendant was satisfied with the jury selected to try the case, error, if any, in propounding questions to jurors who were excused, in the absence of alleged prejudice, was not prejudicial.

3. PLEADING (§ 398)—HARMLESS ERROR—DEMURRER TO THE EVIDENCE.

The overruling of the demurrer to the evidence in a passenger's action for injuries, because the petition alleged that the accident occurred near the intersection of Nineteenth and Olive streets, when, in fact, it occurred about midway between Olive street and Park avenue, was proper, where it appeared that defendant was sufficiently informed as to the locality, and produced witnesses who were present at the time.

4. CARRIERS (§ 333)—PERSONAL INJURIES— SETTING DOWN PASSENGERS.

A passenger who has signaled the car to stop is justified in assuming that he might alight when the car did stop, notwithstanding it was in the middle of a block.

5. TRIAL (§ 244)—INSTRUCTIONS—EMPHASIZING PARTICULAR FACTS.

An instruction as to the particular facts the jury should find in order to find for a party is not objectionable as emphasizing particular parts of that party's evidence.

6. CARRIERS (§ 303)—ACTION FOR PERSONAL INJURIES — SETTING DOWN PASSENGERS — BRINGING CAR TO STOP.

Where those in charge of a street car know that a passenger is in the act of alighting therefrom, it is their duty to exercise such a degree of care as would be exercised by a

careful and skillful man under the same circumstances to hold the car stationary.

7. TRIAL (§ 219)—INSTRUCTION—CERTAINTY.

A requested instruction in a passenger's action for personal injuries that if plaintiff and defendant's servants were guilty of concurrent negligent acts, directly contributing to plaintiff's injury, plaintiff could not recover, was objectionable as leaving the jury to determine what were "concurrent negligent acts."

8. DAMAGES (§ 132)—EXCESSIVE DAMAGES— INJURIES TO PERSON.

Where a woman received a fracture at the base of the skull, had her face scratched, her left hand bruised, one of her teeth knocked out, her left eardrum ruptured, her back and spine bruised and wrenched, and received a severe shock to her nervous system, and suffered a retroversion of the womb, a verdict for $2,000 was not excessive.

9. TRIAL (§ 140) — PROVINCE OF JURY — WEIGHT OF EVIDENCE.

The credibility to be given to the evidence is a matter for the jury.

10. APPEAL AND ERROR (§ 932)—ASSUMPTIONS.

Where the evidence showed that plaintiff suffered a slight retroversion of the womb, and there was no evidence that any other internal organs were affected, it will not be assumed that the jury, upon an instruction submitting the question whether there was an injury "to her internal organs," and in the absence of a showing of any improper motive, assessed damages without proof of other injury and its extent.

11. NEW TRIAL (§ 104)—NEWLY DISCOVERED EVIDENCE—CUMULATIVE EVIDENCE.

The discovery of cumulative evidence is not ground for the granting of a new trial.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Nannie C. Gardner against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas and Platt & Marks, all of Kansas City, for appellant. Oldham & James, of Kansas City, for respondent.

BROADDUS, P. J.

This is an action instituted by the plaintiff to recover damages growing out of injuries she received while alighting from an east-bound electric street car on Nineteenth street, in Kansas City, Mo., on August 31, 1909.

The plaintiff was a passenger, and her statement of the occurrence is that her destination was the intersection of Nineteenth street and Park avenue, next east of Brooklyn avenue; that, after the car passed Brooklyn avenue, she signaled for it to stop, but that it did not stop, but proceeded without slackening its speed; that, as it was passing Park avenue, she again signaled for the car to stop, and arose from her seat, and started to walk to the rear platform in order to alight when it did stop; that the motorman met her on the way, and she told him she wanted to get off, and he said, "All right;" that she continued on her way to the rear platform, during which time the car came to a stop midway between Park avenue and Olive street, the street next east; that just as she was in the act of preparing to step down the conductor rang the bell, and the car started ahead with a jerk, and threw her to the pavement of the street, inflicting upon her person severe injuries. As to the place of the stoppage of the car and the manner of her injury, the plaintiff is corroborated by another witness, a traveling salesman, who was on the car at the time. Her evidence tends to show that she sustained a fracture at the base of the skull; that her face was scratched, her left hand bruised, one of her teeth was knocked out, her left eardrum ruptured, her back and spine bruised and wrenched, that she received a severe shock to her nervous system, and that the injury caused a retroversion of her womb, and that she suffered in various ways as the result of her injuries. The defendant's evidence is also to the effect that plaintiff fell from the car about midway between the two streets, but it was to the effect that the car did not stop or slacken its speed, and that plaintiff stepped off while it was in...