Hecke v. Dunham

• Decision Date: 12 February 1917
• Docket Number: No. 12278.,12278.
• Citation: 192 S.W. 120
• Parties: HECKE v. DUNHAM et al.
• Court: Missouri Court of Appeals

192 S.W. 120

HECKE v. DUNHAM et al.

No. 12278.

Kansas City Court of Appeals. Missouri.

February 12, 1917.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

"Not to be officially published."

Action by G. T. Hecke against Robert J. Dunham and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Clyde Taylor, Charles N. Sadler, and Charles A. Stratton, all of Kansas City, for appellants. Atwood & Hill, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury resulting from falling from one of defendant's electric street railway cars. He obtained a verdict for $3,000. The court ordered a remittitur of $1,000 and entered judgment for $2,000. Defendant appealed.

There was evidence tending to show, and it was so alleged in the petition, that plaintiff was a passenger on one of defendant's electric street cars, and that he made known his desire to alight; that the car was stopped when plaintiff, in the act of getting off, had one foot on the second step and the other on the last step, when the motorman started up with a violent and sudden jerk which threw plaintiff to pavement and injured him.

Defendant insists that there was a failure of proof of the cause of action alleged, in that the evidence only showed the sudden jerk and start of the car, without showing that the motorman started it. Cases are cited by defendant where the cars were such that they could lurch forward or be suddenly jerked without the agency of the person in control; such as cable cars, propelled by means of a very long steel rope or cable, which necessarily will become slack at places and then suddenly become taut, will jerk the car. And so with long freight trains with slack between the cars. But where the car, as here, is an electric car, there is no reasonable or probable agency to which to attribute its suddenly starting forward save by the act of the motorman. So that proof of the sudden starting leaves the inference that it was caused by the motorman. Elliott v. Railway Co., 157 Mo. App. 517, 521, 138 S. W. 663; Modrell v. Dunham, 187 S. W. 561, 564.

It is claimed that no case was made for a jury on the physical facts and natural law. This point is founded on the plaintiff's statement that he was standing erect on the car steps when it started suddenly with the jerk, and threw him so that he lighted full length on the street with his head towards the moving car. The cases of Scroggins v. St. Ry. Co., 138 Mo. App. 215, 120 S. W. 731, and Daniels v. St. Ry. Co., 177 Mo. App. 280, 164 S. W. 154, are cited in support of this view. But there was evidence in this case not found in those. It is true that this plaintiff's testimony discloses that when he...