Haskell v. Metropolitan Street Railway Company
| Decision Date | 22 January 1912 |
| Citation | 142 S.W. 1091,161 Mo.App. 64 |
| Parties | REBECCA HASKELL, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and James E. Nugent for appellant.
The verdict in this case was for the right party. R. S. Mo. 1909 sec. 2082; Bassett v. Glover, 66 Mo. 388; Fairbanks v. Long, 91 Mo. 628; Bushey v Glenn, 107 Mo. 331; Henry v. Railway, 133 Mo. 526; Burns v. City, 131 Mo. 372; Carr v. Railway, 195 Mo. 224; Wabash v. Sloof, 202 Mo. 198; Quinn v. Railway, 218 Mo. 545.
E. G. Gantt and Charles M. Miller for respondent.
Respondent moves the court to dismiss this appeal for the reason that the abstract of record does not show that a sufficient affidavit for appeal was filed. Shemwell v. McKinney, 214 Mo. 692; Wright v. Seiffle, 214 Mo. 694; Greenwood v. Parlin, 98 Mo.App. 407; Schested v. Kansas City, 68 S.W. 1068; Harding v. Bedoll, 202 Mo. 625. The court sustained respondent's motion for a new trial for the reason "that the court committed error in giving the instructions for defendant." By reference to respondent's petition, the court will observe the negligence on which this case is predicated. The allegations of the petition were proven, in toto, by the evidence on behalf of respondent, and these instructions did not properly declare the law applicable to this case. Hurley v. Street Car Co., 120 Mo.App. 262; Green v. Railroad, 122 Mo.App. 647; Bond v. Railroad, 122 Mo.App. 207.
Plaintiff sustained personal injuries while she was alighting from a street car on which she was a passenger and claims in her petition that her injuries were caused by negligence of defendant in suddenly starting the car with sufficient violence to throw her to the pavement from the rear platform. The petition alleges "that on or about the fifteenth day of May, 1909, at about nine o'clock p. m. of said day she paid her fare and was a passenger riding on one of defendant's street cars, which was at the time being operated by the defendant on Fifteenth street in Kansas City, Missouri; that when said car had passed on and over Fifteenth street at the intersection of Kensington avenue, a public street, the motorman and conductor, who were the agents and servants of the defendant in charge of said car, were duly notified that plaintiff desired to get off the car at the usual stopping place on Fifteenth street at the intersection of Cypress avenue, a public street, where it was the duty of defendant to stop its car; that the usual signal was given in ample time for said stop to have been made by the exercise of ordinary care and diligence, but the defendant, through its servants and agents in charge of said car, carelessly and negligently failed and neglected to stop the car as it was its duty to do at said stopping place, and while the car was slowly moving at or about the said usual stopping place the conductor in charge of the car carelessly and negligently told and instructed the plaintiff to get off the car, and plaintiff, believing the car had stopped, or was in the act of stopping, proceeded to get off the car, and while she was in the act of alighting from the car, the car was carelessly and negligently started forward with a sudden, unusual and violent jerk thereby throwing the plaintiff to the pavement and severely injuring her."
The answer is a general denial and a plea of contributory negligence. The trial of the cause resulted in a verdict for defendant but afterward the court sustained plaintiff's motion for a new trial on the ground "that the court committed an error in giving the instructions for defendant." The cause is before us on the appeal of defendant from the order granting plaintiff a new trial.
The court overruled the peremptory instructions offered by defendant both at the close of plaintiff's evidence and at the close of all the evidence, and it is argued with much earnestness by counsel for defendant that these instructions should have been given. We think the evidence of plaintiff presented a case for the jury.
Plaintiff had just arrived in Kansas City on a visit to relatives. She had been met at the Union Station by her brother and sister and the three had become passengers on an eastbound car on the Fifteenth street line. They desired to alight at Cypress avenue and, according to the evidence of plaintiff, they signaled the conductor and he, in turn, signaled the motorman to stop at that street. The car ran a short distance beyond the regular stopping place but slowed down in obedience to the signal. Plaintiff's brother, who carried her hand baggage, alighted while the car was reducing speed. Plaintiff and her sister arose from their seats and went to the rear platform, plaintiff leading the way. When she reached the door into the vestibule, the conductor requested her to hurry and get off. She stepped to the platform and paused an instant for the car to come to a complete stop. The car was of the "pay as you enter" type and its entrance and exit passages were separated by a perpendicular iron rod. Plaintiff stood with her right hand holding this rod and was on the point of stepping down from the platform when the car, in obedience to a signal from the conductor, started forward with a violent jerk, throwing plaintiff to the pavement and injuring her. There is evidence to the effect that the car had almost stopped, was barely...
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