Hartweg v. Kansas City Rys. Co.

• Decision Date: 04 April 1921
• Docket Number: No. 13901.,13901.
• Citation: 231 S.W. 269
• Parties: HARTWEG v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

231 S.W. 269

HARTWEG v. KANSAS CITY RYS. CO.

No. 13901.

Kansas City Court of Appeals. Missouri.

April 4, 1921.

Rehearing Denied May 23, 1921.

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

"Not to be officially published."

Action by Lottie M. Hartweg against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard J. Higgins, of Kansas City, Kan., and Ben T. Hardin, of St. Louis, for appellant.

Atwood, Wickersham, Hill & Popham, of Kansas City, Mo., for respondent.

TRIMBLE, P. J.

Respondent's motion to dismiss appeal will be overruled. It is grounded upon the charge that appellant's statement violates section 1511, R. S. 1919, and our rule 16 (169 S. W. xvii), in that it is not "a clear and concise statement of the case," and includes testimony of witnesses as well as argumentative matters and references to issues of law. There is a tendency on the part of some, in preparing a statement of an appellant's case, to trench very closely upon a violation of the spirit and letter of both the rule and statute. This course is not to be commended; and whenever it results in not clearly and concisely presenting the case to the court, so as to compel us to expend time and labor in ascertaining what should be clearly and concisely presented in the statement, the rule and statute thus violated will be enforced by the appropriate penalty of dismissal of the appeal. Appellants gain nothing by a long, involved, and argumentative statement; indeed, they lose much, for a case well stated is more than half argued and ably so, especially if the merits thereof are with the side presenting it. But to present arguments before the case is opened to the court, or to rehearse testimony before its bearing and applicability can he perceived, cannot fail to create, the impression that reliance is placed more upon argumentative assertions of counsel than upon the inherent facts and justice of the case. In the present instance the first four pages of appellant's statement present a fairly clear and concise statement of the case and what it involves, and therefore the other pages following between that and the "Assignment of errors" can be disregarded as no real part of the statement, even though, as printed, it may appear to he a part of it. Inasmuch as the court is not delayed or put to the expenditure of time and labor by this addition or extension to the statement (to obviate which is the purpose of the rule), we overrule the motion to dismiss the appeal.

Plaintiff's action is to recover damages for injuries sustained while attempting to alight from one of defendant's cars, as the alleged result of defendant's negligent management of the car. She recovered judgment in the sum of $1,500, and defendant has appealed.

The record discloses that plaintiff was a passenger on the street car in question proceeding westwardly toward the intersection of Seventh street and Central avenue in Kansas City, Kan., which was her destination, and at which she desired to alight. Plaintiff's evidence is that, as the car approached the regular stopping place at said intersection, she gave the required signal with the electric button requesting the car to stop there. It did so, and at this time plaintiff was standing at the door leading into the rear vestibule in readiness to alight whenever the car came to a stop and her turn came to get off. When the car stopped, the conductor opened the door of the car leading to the street, and several passengers standing in front of plaintiff began to alight, and plaintiff followed closely behind these alighting passengers—some three or four in number—and was immediately behind the last of these in front of her, a lady by the name of Stratton. The car was crowded, and the passengers in the disembarking line followed as close one to another as they could walk. The car stood motionless as those ahead of plaintiff alighted therefrom, and plaintiff, following closely behind Mrs. Stratton as stated, was on the step in the act of stepping to the ground when the car suddenly started. Plaintiff was facing north as the car started, and she was thrown to the right, striking the ground in a sitting posture, and fell backwards prone upon the pavement. She was carried to a nearby drug store and then removed to her home in an automobile and put to bed. Her injuries were serious and painful.

The petition set forth her status as a passenger approaching her destination and ready to alight as above stated, that the car in obedience to plaintiff's request had come to a standstill at the regular stopping place, and then alleged that while plaintiff "was upon the platform and steps of said car and engaged in leaving the same, while the same was at rest as aforesaid, and before defendant had allowed her reasonable time or opportunity to leave the same, the defendant and its servants in charge thereof negligently and carelessly caused and permitted said car to start in motion and to move forward, thereby causing plaintiff to be thrown from said car violently into and upon the street and hard pavement, grievously and permanently injuring her as hereinafter set out"; that defendant was negligent and careless in that the operatives of the car "negligently caused and permitted said car to start...