Hartzler v. Metropolitan Street Railway Company
| Decision Date | 21 February 1910 |
| Citation | 126 S.W. 760,140 Mo.App. 665 |
| Parties | JOHN C. HARTZLER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. H. L. McCune, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas, Charles H. Botsford and Charles N. Sadler for appellant.
(1) It must be proved if not beyond a reasonable doubt, at least with reasonable certainty, that the death was caused by the negligent act complained of, for which defendant is liable. In this sort of action a mere preponderance of the evidence is not sufficient. DeMart v. S. P. & M. Co., 21 Mo.App. 92; Bank v. Railway, 98 Mo.App. 330; Goransson v. Riter-Conley M. Co., 186 Mo. 300; Purcell v. Tenant S. Co., 187 Mo. 276; McGrath v. Transit Co., 197 Mo. 97; Smart v. Kansas City, 91 Mo.App. 586; Young v. Railway, 113 Mo.App. 636; Caudle v. Kirkbride, 117 Mo.App. 412. (2) The statute under which this action was brought is in derogation of the common law, is penal, and is to be strictly construed. Casey v. Transit Co., 116 Mo.App. 235; Higgins v. Railroad, 197 Mo. 300; McQuade v Railroad, 200 Mo. 150. (3) The injury complained of was not the proximate cause of the death of deceased, other causes intervened after she received the said injuries, which with reasonable certainty may be said to have caused the death of deceased. Foley v. McMahon, 114 Mo.App 442; Saxton v. Railway, 98 Mo.App. 494; Kappes v. Shoe Co., 116 Mo.App. 154; Glasgow v. Railway, 191 Mo. 347; 29 Cyc. of Law and Pro., p. 495, 2 particular injury and notes, and p. 496 and authorities cited in notes; pp. 499 H, 500 and 501, and authorities cited in notes; Cole v. Sav. & L. Soc., 59 C. C. A. 593; Railway v. Columbia, 65 Kan. 390; Schaffer v. Railroad, 105 U. S. Sup. C. Rep. 249; Smart v. Kansas City, 91 Mo.App. 596; 13 Cyc., p. 319, title proximate cause of death. (4) The act, neglect or default must have been the proximate cause of the death, but the act, neglect or default is the proximate cause of death if it inflicts a fatal injury. Young v. Railway, 113 Mo.App. 636; Caudle v. Kirkbride, 117 Mo.App. 412. (5) The court erred in permitting the plaintiff to introduce in evidence the opinion of doctors as to the cause of the death of deceased. After fully describing the condition and disease of deceased it was for the jury to determine what was the cause of her death. The opinion testimony was incompetent and irrelevant. Glasgow v. Railroad, 191 Mo. 347. (6) That counsel for plaintiff herein was guilty of misconduct in the trial of this cause which was calculated to and apparently did prejudice the jury against the defendant, in interrupting opposite counsel in the cross-examination of one of plaintiff's most important witnesses. Hooper v. Tel. Co., 92 Mo.App. 304; Massengale v. Rice, 94 Mo.App. 430; Wendler v. People's H. F. Co., 165 Mo. 527.
Charles M. Miller and Scarritt, Scarritt & Jones for respondent.
(1) Not only was there strong, if not conclusive evidence, tending to show that plaintiff's injuries, received by being thrown from appellant's car, were the proximate cause of her death, but the evidence wholly fails to show any other cause of her death. As there was evidence tending to show that Mrs. Hartzler's death might reasonably and properly be attributed to the alleged injury, the question was properly submitted to the jury. Hanlon v. Railway, 104 Mo. 381; Seckinger v. Manufacturing Company, 129 Mo. 590; Walsh v. Railway, 102 Mo. 582; Beauchamp v. Saginaw, 50 Mich. 163; Sorenson v. Railroad, 36 F. 166; Railroad v. Buck, 97 Ind. 346; Thompson v. Railroad, 91 Ala. 496; Mount Carmel. Howell, 36 Ill.App. 68; s. c., 139 Ill. 91; Loovan v. Railroad, 57 N.Y. Super. Ct. 165; McDonald v. Railway, 118 S.W. 78. (2) The forfeit provided in the damage act is held to be both penal and compensatory. Philpott v. Railroad, 85 Mo. 167; King v. Railway, 98 Mo. 239.
This is a suit for damages instituted, under section 2864, Revised Statutes of Missouri, as amended by the Session Acts of 1905, by plaintiff to recover for the death of his wife, which occurred on December 16, 1905, as the alleged result of injuries received by deceased by being thrown from one of defendant's street cars in Kansas City, on October 25, 1905.
The allegation of the petition is that the injuries which caused the death of his wife were the result of defendant's negligence in starting the car while she was in the act of getting upon it, which caused her to fall with great force and violence onto the street.
The plaintiff's evidence tended to show that on the day in question plaintiff's wife and daughter Rose got off the defendant's car going west on Tenth street for the purpose of transferring to the defendant's car at Troost to go south on Troost avenue; that they went to the southwest corner of Tenth street and Troost avenue where other persons were awaiting for the arrival of the car. When it came all the other persons got on the car, then Rose was the next to get on. Mrs. Hartzler came last at which time the car was standing still. Rose had just got onto the platform when the car started. As Mrs. Hartzler stepped on the rear step of the car and took hold of the front handhold of the vestibule, the car started forward, which caused her to lose her grip on the front handhold, but she caught the rear one. The conductor caught her by the arm but for some cause he let loose and she lost her balance and fell. There is ample evidence tending to show that plaintiff's wife's fall was caused by the negligent act of defendant's servants in prematurely starting the car while she was attempting to board it.
The deceased fell on her right side striking on her left knee. She went to her home and was suffering from pain in one of her knees and in her left side. Her daughter Rose put her to bed and applied liniment to her injuries. Doctor McCrea was called in at first, but on the third day Doctor Singleton was called, who continued to attend her until her death which occurred about six weeks thereafter. The deceased herself called at the office of Dr. Singleton on the third day after her injury and again in a few days thereafter. She went about her business and about the 30th of October she assisted in moving from her then residence to another; she handled heavy furniture, but seemed to have some trouble with one arm and shoulder. After that time the doctor saw her at her home. His description of her condition at the time he first saw her was that she was sore all over; that she complained particularly of pain in the left side and up the back and in the back of the neck. He gave her remedies to quiet her nerves and to relieve pain and also administered a tonic. On the 10th of December, the doctor discovered that she had pneumonia and her temperature stood at one hundred and four degrees.
An autopsy was held by Dr. Hall upon deceased's body and it was found that one of her ribs was fractured. He testified that he found her organs in normal position and they appeared to be within the normal limits of structure; that the cause of her death was croupous pneumonia; that both her lungs were the seat of the disease and its extent was considerable; that the thoracic cavity and pleural surfaces and surface of her lungs and surface of the chest were for the most part, in the posterior region, covered with inflammatory matter, pus fibrin threads, both in the condition of advanced disease; that the sixth rib had sustained a simple fracture in the middle; that this injury was right under the left nipple; that a simple fracture is when the ends of the fractured bones do not protrude through the coverings of the body; that the rib was broken entirely through; and that the pleural membrane was between the rib, at the point where it was broken, and the lung.
The witness further stated that the disease was traumatic croupous pneumonia, a disease that follows an injury. The defendant objected to the introduction of this statement. The witness, resuming, stated that in his opinion the broken rib was the producing cause of the disease and that he discovered no other.
On cross-examination he was asked this question: We have not attempted to give in detail all the evidence of the learned doctor but only so much as has a tendency to show that plaintiff's death was the result of the injury she received when she fell from the car. Further reference will be made to other testimony later on.
The defendant's evidence tended to show that when the car stopped to take on passengers at Tenth street and Troost avenue there were no women standing there. The conductor's statement is to the effect that several men got aboard, and seeing no other passengers he Other evidence was corroborative of that of the conductor.
Defendant's evidence further...
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