Harriman v. Dunham

• Decision Date: 11 June 1917
• Docket Number: No. 12499.,12499.
• Citation: 196 S.W. 443
• Parties: HARRIMAN v. DUNHAM et al.
• Court: Missouri Court of Appeals

196 S.W. 443

HARRIMAN v. DUNHAM et al.

No. 12499.

Kansas City Court of Appeals. Missouri.

June 11, 1917.

Rehearing Denied July 2, 1917.

Error to Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Joseph L. Harriman, as administrator of the estate of D. S. Harriman, deceased, against Robert J. Dunham and another, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants bring error. Affirmed.

Clyde Taylor and Chas. Stratton, both of Kansas City, for plaintiffs in error. Atwood & Hill, of Kansas City, for defendant in error.

BLAND, J.

Plaintiff below recovered a judgment for damages for personal injuries and defendants have brought the case here by writ of error. Since the trial of the cause the plaintiff has died, and the case has been revived in the name of the administrator of plaintiff's estate.

The evidence shows that between 1 and 2 o'clock on the morning of February 26, 1913, plaintiff was returning from Leavenworth, Kan., with a party of Shriners, upon a car in charge of defendants. When the car reached the west side of Broadway, headed east on Eighth street in Kansas City, Mo., it came to a safety stop, and after so stopping it continued across Broadway very slowly. One of the witnesses stated that it was "just creeping along." Before the car reached its regular stopping place on the east side of Broadway the plaintiff gave the usual signal indicating that he desired to get off at that place, and while the car was yet on the west side of Broadway he got up from his seat and went to the rear step of the car, where he stood waiting for it to stop. However, the car did not stop at the spot on the east side of Broadway where motormen generally aimed to stop their cars, but, according to the motorman, it continued 12 or 15 feet further eastward before stopping. The evidence further shows that at this latter point it stopped with a sudden jerk, and immediately started again with a like jerk, throwing plaintiff to the pavement, and proceeded about 30 feet farther, when it came to a dead stop.

The motorman testified that he attempted to stop on the east side of Broadway, but the wheels of his car slipped, causing the car to slide 12 or 15 feet farther before it stopped, but the motorman denied that the car jerked. The evidence shows that from the time the car made the safety stop on the west side of Broadway until it stopped with a sudden jerk 12 or 15 feet east of the spot where motormen generally aimed to stop their cars it was proceeding at an extremely slow rate of speed. Plaintiff assumed that the car would stop on the east side of Broadway, and when it did not so stop he thought that the car had only missed the exact stopping place and would stop at any moment, and continued to stand on the step until he was thrown as aforesaid.

The first point made by plaintiffs in error is that a demurrer to the evidence should have been sustained, for the reason that plaintiffs in error claim that plaintiff totally failed to prove the case alleged in his petition. The petition alleged:

That "this plaintiff, desiring to alight from the street car at said point, signaled the servants of both defendant companies who were in charge and control of said car, and as the car approached said intersection plaintiff went upon the platform of said car for the purpose of alighting therefrom; that said car was slowing down at said intersection almost to a stop; and that plaintiff, in the exercise of due care and caution for his own safety, was waiting for the car to stop so that he might alight therefrom when the defendants, their servants and agents in charge of said car, and in the scope of their employment negligently and carelessly caused said car to suddenly jump, jerk, and start forward at a reckless and dangerous rate of speed," etc.

The point made is that the petition alleges that the car gave a sudden jerk forward at the intersection of Eighth street and Broadway, throwing plaintiff from the car, while the evidence shows that the jerk of the car was 12 to 15 feet east of the intersection of Broadway with Eighth street. We are unable to see how the facts in this case are in any respect like those in the case of Ward v. Harvey, 182 S. W. 105, cited by plaintiffs in error. In that case it was alleged that plaintiff was invited to get off of defendants' car 50 feet east of Seventh street on Central avenue in Kansas City, Kan., and that when the car slowed down defendants carelessly and negligently gave it a jerk, throwing plaintiff, while the evidence shows that, instead of the car slowing down for a stop at the place alleged, the car passed this point going at the same rate of speed it had been going, and passed into the next block, and about midway of such block the car slowed down and came to a standstill, and as plaintiff was in the act of getting off (without invitation) the car was negligently started forward with a jerk, throwing her off under entirely different circumstances than those alleged. On the other hand, in this case the facts are that the car was just creeping along when it reached the spot where motormen generally aimed to stop their cars, indicating to plaintiff that it was going to stop and causing him to believe that, as cars frequently do, it passed the regular stopping place. There was nothing to indicate to plaintiff that the car was not going to stop; for, as it was running very slowly and it did not pick up in speed, from all the facts and circumstances plaintiff was led to believe that the car would stop. The evidence is not clear as to the exact point where east-bound cars usually stopped at Eighth street and Broadway, and we do not believe under the facts shown by the evidence in this case that the car by stopping 10 or 12 feet east of the east line of Broadway, where cars were supposed to stop, that there was a material difference between the allegation and the proof. At most, the proof amounted to a variance only, and not a total failure to prove the cause of action alleged.

Plaintiffs in error further contend that there was no knowledge on the part of defendants' servants that plaintiff was on the step at the time he was thrown therefrom. The evidence shows that plaintiff asked the conductor to let him off at Broadway, and that the latter was standing in the rear vestibule, and plaintiff was in plain sight of the conductor during the whole time of this occurrence. Aside from this the...