Heriford v. Kansas City Rys. Co.

• Citation: 220 S.W. 899
• Decision Date: 13 March 1920
• Docket Number: No. 20853.,20853.
• Parties: HERIFORD v. KANSAS CITY RYS. CO.
• Court: United States State Supreme Court of Missouri

220 S.W. 899

HERIFORD v. KANSAS CITY RYS. CO.

No. 20853.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

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

Action by Della A. Heriford against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard Higgins, of Kansas City, Kan., and Ben T. Hardin, of Kansas City', Mo., for appellant.

T. J. Madden, of Kansas City, Mo., for respondent.

WHITE, C.

Plaintiff sued for injuries received in alighting from defendant's car December 9, 1915. On a trial at the May term, 1917, of the Jackson county circuit court a jury returned a verdict in favor of plaintiff in the sum of $15,000. The defendant appealed. The suit originally was brought against the receivers of the Kansas City Street Railways Company, which accounts for the recurrence of the word "receivers" in some instructions, though the Railways Company alone appears as appellant.

On December 8, 1915, the plaintiff was a passenger on one of defendant's north-bound cars on Wyandotte street, which runs north and south. When the car arrived at Tenth street, and before crossing Tenth, it stopped for the purpose of discharging passengers. It seems that passengers could alight from the car at either the front end or the back. On this occasion several passengers, including plaintiff and her sister, alighted from the front end at the left side. There were two parallel tracks on Wyandotte street at that point, with a space of 5 feet 3½ inches between them. The passengers in, alighting stepped down between the two tracks in the middle of the street.

Certain repair work was going on at that point. The street car company was putting in a switch that curved to the right into Tenth street, and the pavement was torn up between the tracks, not only that portion of the pavement which the defendant was obliged to keep in order, but other portions of the pavement. At the point where the step of the car stopped from which a passenger must descend there was an excavation where the pavement was torn out variously estimated by the different witnesses at from 6 inches to 18 inches deep; and some witnesses stated that there were loose stones in the bottom. Across this excavation, and next the west track, the pavement was intact. The position and shape of this hole is described by several witnesses, showing that it extended from under the step to 2 or 3 feet north and west of the step. Two or three men preceded the plaintiff in alighting, stepped across the chasm, and stood upon the pavement. In stepping down plaintiff did not see the excavation and stepped into it, and was thrown violently to the ground. Her sister, coming immediately after, picked her up. She was taken across the street, put on another car, carried to a doctor's office, and then home, where she was treated.

No claim is made that the verdict was excessive. The neck of the left femur was fractured. The blow produced myelitis, inflammation, and final wasting of the spinal cord, which induced violent nervous disorders, caused involuntary twitching of the limbs and drawing back of the head. She bled at the ear and nostrils and suffered other minor bruises and contusions. She was in the hospital several months. At the time of the trial it appears she was able to be in court on crutches. That was about a year and a half after the injuries were received. Experts swore the injury to the spinal cord was progressive; that in all probability she would never be better. At the time of the accident she was employed as a bookbinder and was going to her work at about 8 or 8:30 o'clock in the morning.

The acts of negligence upon which the plaintiff seeks to recover are set out in the petition as follows:

"Said injuries were due to and caused by the negligence of defendants in that said street at the point where she was injured was unsafe and dangerous for passengers in alighting from said car, in that said car was stopped at said point and passengers, including plaintiff, were permitted to leave said car under said circumstances at said point and exit, and in that plaintiff was not warned by the servants in charge of said car of the dangerous condition of said place when the same was unknown to plaintiff and when said condition and lack of knowledge thereof on plaintiff's part were known to said servants, or could have been known and realized by them in the exercise of the high degree of care and skill they owed the plaintiff as a passenger."

A great volume of evidence was introduced in description of the place where the car stopped. The evidence sufficiently showed that it was dangerous for passengers alighting, and that the hole in the street at that point was very much as complained of and described by plaintiff and her witnesses. The issues were submitted to the jury, which returned a verdict as indicated.

I. The appellant claims that the court erred in giving instruction No. 1 on behalf of the plaintiff. The instruction is too long to copy at length. It told the jury that the defendants (receivers) were common carriers for hire, and owed to passengers the duty of exercising the highest practicable degree of care and skill. It required the jury, before finding for plaintiff, to find that she was a passenger on the defendant's car; that the motorman stopped the car for passengers to alight at Tenth and Wyandotte streets; "that plaintiff proceeded to leave the car at the front exit as was usual and customary on said line," and stepped into a hole or depression in the street between the tracks and was injured; and that the plaintiff was in the exercise of reasonable care. The part of the instruction against which the objections are directed is as follows:

"And if you further believe and find from the evidence that the street at the point where plaintiff stepped from said car and was injured (if you so find) was, by reason of said hole or depression, not reasonably safe for passengers alighting from said car, and that said car was negligently stopped so that the step of said car was at said point, and that passengers, including plaintiff, were permitted to leave said car at said step and exit with the knowledge and consent of said receivers or their servants in charge of said car, and if you further believe and find from the evidence that said receivers or their servants in charge of said car knew, or by the exercise of the high degree of care above defined could have known and realized, the said street at said point was not reasonably safe (if you so find) for passengers alighting from said car at said front step and exit, and if you further believe and find from the evidence that it was negligent on the part of said receivers or their motorman to stop said car at said point (if you find it was stopped there) and to permit passengers to leave said car under said circumstances at said point and exit, and that as a direct result of said negligence (if any) plaintiff was injured," etc.

First, it is claimed the instruction assumes that the car was "negligently stopped" where it says, "and that the said car was negligently stopped so that the step of said car was at said point." The context shows exactly the contrary, because it requires the jury to find "that the street at the point where plaintiff stepped from said car and was injured * was not reasonably safe for passengers alighting from said car and that said car was negligently stopped so that the step of said car was at said point." Certainly, if it was not a reasonably safe place for passengers to alight from the car, defendant, in stopping the car there, was wanting in the degree of care which it owed to its passengers. Further, the fact that the car was stopped there did not of itself, by that instruction, authorize a recovery. It was simply one of the facts to be found by the jury before plaintiff could recover. They not only had to find that the car was stopped there, but that it was not a safe place, and that defendants and their servants knew it was not safe, or could have known by the exercise of proper care.

Appellant finds further fault with the instruction on the ground that it submitted a legal question to the jury where they were permitted to "find from the evidence that it was negligent on the part of said receivers or their motormen to stop the car at said point, and to permit passengers to leave said car under said circumstances at said point and exit."

Now it will be noticed that the first objection which appellant directs at the instruction is that it was error to assume it was a negligent act to stop the car at a place which they should find to be dangerous. The second objection is that it was error to permit the jury to find that in fact it was a negligent act; that is, the first objection is that the jury was not required to find the act was negligent, and the second objection is that the jury was required to find that it was negligent.

In the case of State ex rel. v. Ellison, 272 Mo. loc. cit. 581, 199 S. W. 987, Chief Justice Graves stated the correct rule to observe in submitting issues of this character to the jury as follows:

"(1) The trial court may say that, if the jury find that the defendant did certain things, or omitted to do certain things, then such act or acts of the defendant would constitute negligence as a matter of law, and

"(2) The trial court could say to the jury that, if the jury found that the defendant had done or had omitted to do specified acts, and that the doing of such things, or the failure to do such things, was negligence, as negligence was elsewhere defined, then the jury should find for the plaintiff; in other words, the covert might declare that the proven acts constituted negligence, or it might submit such acts to the jury, and let the jury determine the question of negligence or no negligence." (Italics are...