Gott v. Kansas City Rys. Co

• Decision Date: 04 June 1920
• Parties: GOTT v. KANSAS CITY RYS. CO
• Court: Missouri Supreme Court

222 S.W. 827

GOTT v. KANSAS CITY RYS. CO

Supreme Court of Missouri

June 4, 1920

Motion for Rehearing Denied June 25, 1920.

Rehearing denied by, 06/25/1920

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Mary E. Gott against the Kansas City Railways Company. Judgment for defendant, and plaintiff appeals.

Plaintiff suing to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant, was, by the verdict of a jury, denied a recovery and duly appeals. The petition was formal. The answer was a general denial and a plea of contributory negligence. No questions are made as to the pleadings, evidence, or aught else save the instructions. It is necessary, therefore, to state only such facts as bear upon the propriety of the action of the trial court in giving and refusing instructions.

Plaintiff a woman of 55 years and a stranger in Kansas City, took passage upon one of defendant's cars in that city, for the purpose of going to Sheffield, a regular stopping place on defendant's street car line between Kansas City, Mo and Independence, Mo. She testified that she duly paid her fare, notified the conductor that she was a stranger in the city, and that she desired to alight at Sheffield, and was told by him that he would let her off of the car when that point was reached. Shortly after the car had passed Sheffield, plaintiff though unacquainted in the vicinity, suspected that she had been carried past her destination, and upon inquiry of the conductor learned that her surmise was correct. Plaintiff' reiterated her statement that she desired to get off at Sheffield, and the conductor there-upon rang the bell and stopped the car. Plaintiff proceeded to alight. It was night, however, and she protested against having to get off at such a time and place, on account of her age and weight. The conductor made no response, but as she was descending the steps he pointed back in the direction from which the car had come, and told plaintiff that some lights which were visible in the direction indicated were at Sheffield. The car then proceeded on its way, and plaintiff started back up the track toward the lights which had been pointed out to her. The distance from where plaintiff left the car to Sheffield was apparently about the length of an ordinary city block. After plaintiff had gone about 10 steps, she looked up and saw a street car approaching from the west, the direction in which she was going, and upon the same tracks upon which she was walking. Defendant maintained a double track upon its lines Between the points in question. Upon observing the approaching car, plaintiff stepped over upon the north track, to escape the on-coming car, and very shortly after doing so discovered that she was walking upon a trestle, and, looking downward, saw the gleam of water beneath her feet. She had then gone 12 or 15 steps' from the place where she alighted. At about the same time, she was enveloped in the glare of the headlight of another street car coming from the east, and upon the tracks between which she was then walking, and in dangerously close proximity. Plaintiff endeavored to signal the last-mentioned car, failed to attract the motorman's attention, and was struck and injured.

The point where plaintiff alighted from defendant's car was at the intersection of Bristol avenue with defendant's right of way, in the eastern suburbs of Kansas City. According to the testimony of the conductor, this was a regular stopping place. It was unlighted. The hour was about midnight. Bristol avenue runs north and south. The street car line runs east and west. Independence road, another street, practically parallels the street car line at this place. Bristol avenue runs north to Independence road. The distance between the point where plaintiff alighted and Independence road is described as a "short block." Independence road runs west to Ewing avenue, a distance of about two blocks. Ewing avenue runs south to Sheffield, a distance of about a block. The trestle upon which plaintiff was walking when she was struck crosses Gooseneck creek. Between that creek and Sheffield three railroad tracks cross the defendant's right of way. There was no practicable way by which plaintiff could have gone south from the point where she alighted on Bristol avenue, and thus have reached Sheffield avenue. Bristol avenue was an ungraded street with a wagon road down the center, and a board sidewalk on the cast side. As stated, plaintiff was not acquainted with the locality. The gravamen of her petition is that defendant was negligent in directing her to alight in an unsafe place. There was evidence in behalf of defendant that the conductor offered to take plaintiff on to Independence, a distance of a few miles, and bring her back, without charge, and also that he directed her to return to Sheffield by way of Bristol avenue and Independence road. This testimony was contradicted by plaintiff. She also testified that she did not see or know of either Bristol avenue or Independence road, although she looked about for some other route to take to Sheffield. The instructions will be discussed later.

Reversed and remanded.

A. R. McClanahan, of Kansas City, E. C. Hamilton, of Independence, and Reed & Harvey, of Kansas City, for appellant.

R. J. Higgins, of Kansas City, Kan., and L. T. Dryden, of Independence, for respondent.

OPINION

WILLIAMSON, J. (after stating the facts as above).

I. Appellant complains of the action of the trial court in giving instruction No. 1 to the jury. This instruction is as follows:

"The court instructs the jury that if they believe from the evidence that plaintiff, after the car in evidence passed Sheffield inquired of the conductor if Sheffield had been passed, and that the conductor in charge of the car upon which plaintiff was a passenger stopped said car for the purpose of permitting plaintiff to alight therefrom at or about Bristol avenue, in order that plaintiff might return to Sheffield, and that plaintiff in the exercise of ordinary care and intelligence did understand and believe that the conductor desired her to alight at said point, and that said point was dark, and that plaintiff was a stranger to the place and in the exercise of reasonable care and intelligence did not see, and could not have seen, any route over which she could proceed to Sheffield except the route over the tracks of defendant back to Sheffield, and that it was necessary for her in passing along that route back to Sheffield to cross over the trestle in evidence, and that the time and place of alighting were dangerous and unsafe, and that plaintiff did pass over said route in an attempt to go back to Sheffield, and in so doing used the care and prudence of an ordinarily prudent person under like circumstances, and while so doing was struck by one of defendant's cars while she was still upon said trestle, and was injured, and if the jury further find that defendant's conductor in charge of the car upon which plaintiff had been a passenger could have reasonably anticipated the possibility of such an accident, as explained in other instructions given by the court, and if the jury further find that at said time and place plaintiff was exercising the care and prudence of an ordinarily prudent person, then the jury should find a verdict for the plaintiff."

The error is said to lie in the portion or the instruction which we have italicized, and more particularly in that portion which directed the jury to find in appellant's favor only in the event that the jury found that respondent's servant, the conductor, "could have reasonably anticipated the possibility" of the occurrence of such as accident as befell appellant as a result of permitting her to alight from respondent's car at an unsafe place. Or, to rephrase the thought, the jury was told that respondent was not liable unless the event which occurred could reasonably have been anticipated as a possible result of putting appellant down at an unsafe place. This is simply equivalent to saying that respondent was bound to use ordinary care only. But was ordinary care sufficient? The carrier's contract safely to transport appellant to her destination was not performed until she had been discharged from respondent's car at a reasonably safe place. Until that end had been attained, the respondent was bound to use that high degree of care which the law imposes on common carriers of passengers, namely, the utmost care that very prudent men employ in performing the contract of carriage with like means of transportation. Stauffer v. Railroad, 243 Mo. 305, loc. cit. 316, 147 S.W. 1032. It is a rule, often reiterated in this jurisdiction, that it is the duty of carriers of passengers to carry them safely to their destinations, and to put them off at safe places only. McGee v. Railroad, 92 Mo. 208, 4 S.W. 739, 1 Am. St. Rep. 706; Griffith v. Railroad, 98 Mo. 174, 11 S.W. 559; Cossitt v. Railroad, 224 Mo. 97, loc. cit. 107, 123 S.W. 569. The rule with reference to the degree of care required of carriers of passengers with respect to discharging passengers at safe...