Gilman v. Fleming

• Decision Date: 21 January 1924
• Docket Number: No. 14918.,14918.
• Citation: 265 S.W. 104
• Parties: GILMAN et al. v. FLEMILNG et al.
• Court: Missouri Court of Appeals

265 S.W. 104

GILMAN et al. v. FLEMILNG et al.

No. 14918.

Kansas City Court of Appeals. Missouri.

January 21, 1924.

Certiorari Denied October 9, 1924.

Appeal from Circuit Court, Jackson County, James H. Austin, Judge.

"Not to be officially published."

Action by George W. Gilman and wife against Fred W. Fleming and others, receivers of the Kansas City Railways Company. Judgment for plaintiffs, and defendants appeal. Affirmed.

Chas. N. Sadler, Benj. L. White, and E. E. Ball, all of Kansas City, for appellants.

Scarritt, Jones, Seddon & North, of Kansas City, for respondents.

TRIMBLE, P. J.

Plaintiffs brought suit to recover damages for the death of their unmarried minor son, a boy 12 years of age. He was riding a bicycle north along the east side of Holmes street, proceeding in the same direction and parallel with a street car, and was occupying a point about even with the middle of the car from front to back. A double track existed there, the street car being on the right-hand or easternmost track, and the boy on his bicycle was midway between the street car and the curb. The street was paved with asphalt. When in the middle of the block" between Thirty-First and Thirtieth streets the motorman, while the car was in motion, suddenly and without warning threw open the door of the vestibule at the front end of the car for the purpose of discharging a man (a trainman of the system, but who was not on duty at the time), or permitting him to jump or alight therefrom into the line of travel on the street. The man did so, and the collision of his body with the boy's bicycle caused the boy to be thrown under the wheels of the moving street car, mangling his legs so that he died the next morning. It was night when the injury occurred. The street car was of the kind in which the opening of the doors is controlled by a lever operated by the motorman, the doors being kept closed while the car is in motion so that persons cannot alight while the car is moving. When the door is closed there is no step to the car which can be used, the step coming automatically into place as the door is being opened and folding up when the door is closed.

A demurrer to the evidence was offered at the close of plaintiffs' case, and when this was overruled the defendants stood on their demurrer. The jury" returned a verdict in plaintiffs' favor for $3,000, and, judgment being rendered thereon, defendants appealed.

Two contentions only are involved in the appeal. First, that the objection to the introduction of any evidence under the petition should have been sustained for the reason that it did not state facts sufficient to constitute a cause of action. Second, that the demurrer to the evidence should have been sustained.

The petition, in substance, charged that, at or about the middle of the block extending from Thirty-First to Thirtieth streets, and at a place where it was not customary for passengers to be discharged or permitted to alight, and at a place where said Gilman (the boy) and other travelers rightfully and lawfully on the street had no reason to expect, and were not required to expect, passengers to be discharged or to alight, the operative in charge of the car, carelessly and without warning to Gilman or to any one else who might be lawfully on said Holmes street at the time and place in question, opened the door in the front vestibule of the car for the purpose of discharging or permitting a man to alight therefrom, and caused or permitted a man to alight from the front end of said car, while it was in motion, against or directly in front of said Henry W. Gilman and his moving bicycle, necessarily resulting in a collision between said man and said boy upon his bicycle, and said Henry W. Gilman was thereby thrown or caused to fall under the wheels or trucks of said car and be thereby fatally injured.

The petition stated a cause of action. Certainly it did as against a mere objection to the introduction of evidence. The contention that the petition states no cause of action is without merit. The charge in the petition is that the motorman, in the middle of the block, and where he would not be expected to discharge persons or allow them to alight, suddenly and without warning, and while the car was in motion, negligently opened the door to discharge a man or permit him to alight therefrom at a place where travelers on the street would have no reason to expect, and caused or permitted the man to alight from the car directly in front of the boy on his bicycle, necessarily resulting in a collision with him whereby the boy was thrown under the wheels of the car and killed. If that does not state a cause of action based on negligence, we do not know what would. There is no difference in principle between the charge here made and the charge that, while the car was in motion and in the middle of the block, the operatives of the car suddenly and without warning rolled an object from the moving car directly into the line of travel on a public street whereby a...