Grubb v. Dunham

Citation201 Mo. App. 504,214 S.W. 256
Decision Date26 May 1919
Docket NumberNo. 13268.,13268.
PartiesGRUBB v. DUNHAM et al.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by Maxine Grubb, by her next friend, Myrtle Grubb, against R. J. Dunham, receiver of the Metropolitan Street Railway Company, and the Kansas City Railways Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

R. J. Higgins, Chas. N. Sadler, and B. E. Ball, all of Kansas City, for appellants.

W. M. Bowker, of Nevada, Mo., and Ingraham, Githrie & Dunham, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $2,500 on account of the alleged negligence of defendants in running one of their cars over her; it being operated at the time at an excessive rate of speed.

The facts, taken in their most favorable light to plaintiff show that defendants operated a street railway from Kansas City to Fairmount Park, an amusement park near that city. The car tracks made a loop in said park; cars going into the park proceed in a northerly direction, make the loop, and in returning leave in a southerly direction. Defendants' right of way in the park was fenced off from the park proper. After the cars made the loop they passed by a loading dock which occupied a space about 40 feet long and 12 or 14 feet in width, being paved with cinders and extending from the fence to defendants' tracks. This platform of cinders was on a level with the top of the car tracks. Passengers desiring to board cars came from the park through a turnstile, where defendants collected fares, to this loading dock.

About 5 o'clock on the afternoon of August 1, 1915, plaintiff, a child about nine years of age, who was accompanied by relatives, went through the turnstile, paid her fare, and was standing upon the loading dock with a crowd of passengers waiting for a car. The crowd consisted of from 150 to 200 men, women, and children. The main part of the crowd was standing at the north end of the loading dock. One of defendants' cars, being operated at a speed from 12 to 15 miles per hour, came around the loop and passed the crowd standing upon the loading dock. It did not slacken its speed until it reached a point about the middle of the dock, and ran for some distance after reaching this point. It is impossible to tell from reading the evidence the exact distance, but evidently it ran so as to practically clear, if not entirely clear, the loading dock; the motorman saying that he ran his car so far in order to permit another car coming up from behind to reach the loading place to take on passengers. When the car passed the crowd of people, a rush was made by them to obtain seats thereon; the crowd surging toward the car. As the car passed the crowd of people some men boarded the front end, and, standing on the step, knocked down four or five people who lay along the side of the car. Defendants' witnesses, Rowland and Stuberfield, testified that just before the car came to a stop a man rushed through the crowd, struck plaintiff, who was near the center of the car, knocked her over the people who had fallen, causing her foot to get upon the track and the car to run over her.

Plaintiff says that there is substantial evidence in the record that she was knocked down by the men who boarded the front end of the car or by the persons those men struck. There is nothing in the evidence of a substantial nature to bear out this contention of plaintiff. It is true that some of plaintiff's witnesses hazarded a guess that such might have been the case, but their testimony on the point does not rise to the dignity of substantial evidence.

As a result of the injury she lost by amputation her big, second, and third toes, and the end of the fourth toe, and the bones leading to them. The man who struck plaintiff boarded the rear end of the car and was lost in the crowd.

The evidence showed that plaintiff was knocked under the car at the center of the same, and that the front wheel of the rear trucks passed over her foot when the car stopped. The length of the car was about 50 feet, and the distance between the nearest wheels of the front and back trucks was from 15 to 20 feet. The wheels of the car were about 2 feet in diameter. The car ran nearly its entire length after knocking down the people before it stopped. There was evidence that like crowds prior to this day, at the place in question, had acted similarly to this one. There is no claim that the motorman knew, or should have known, before the car was stopped, that plaintiff was knocked under the car. After plaintiff was struck it would have been impossible to have prevented the accident regardless of the rate of speed, as the motorman could not have seen pl...

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19 cases
  • Lloyd v. Alton Railroad Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 1, 1943
    ......T. & P. Ry. Co., 152 So. 351; Decker v. Rd. Co., 187 Mo. App. 207, 172 S.W. 1168; McGee v. Railroad, 214 Mo. 530, 114 S.W. 33; Grubb v. Railroad, 214 S.W. 256. (11) The trial court erred in refusing to admit in evidence, the ordinary habits of the collie dog on previous occasions, ......
  • Lloyd v. Alton R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 1, 1943
    ......T. & P. Ry. Co., 152 So. 351; Decker. v. Rd. Co., 187 Mo.App. 207, 172 S.W. 1168; McGee v. Railroad, 214 Mo. 530, 114 S.W. 33; Grubb v. Railroad, 214 S.W. 256. (11) The trial court erred in. refusing to admit in evidence, the ordinary habits of the. collie dog on previous ......
  • O’Bauer v. Katz Drug Co.
    • United States
    • Court of Appeals of Kansas
    • April 4, 1932
    ...... jury might have based this conclusion. It must be founded. upon more than mere guess or speculation. Grubb v. Dunham, 201 Mo.App. 504, 508, 214 S.W. 256. . .           There. is nothing in the testimony suggesting that there was. anything ......
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    • Court of Appeal of Missouri (US)
    • April 1, 1929
    ......Grubb v. Dunham, 201 Mo. App. 504, 509, 214 S. W. 256; State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S. W. 869. In Bokamp v. R. R., 123 Mo. App. 270, 284, ......
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