Higbee v. Fleming

• Decision Date: 05 February 1925
• Docket Number: No. 15232.,15232.
• Citation: 269 S.W. 673
• Parties: HIGBEE v. FLEMING et al.
• Court: Missouri Court of Appeals

269 S.W. 673

HIGBEE v. FLEMING et al.

No. 15232.

Kansas City Court of Appeals. Missouri.

February 5, 1925.

Rehearing Denied February 28, 1925.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

"Not to be officially published."

Action by Terressa E. Higbee against Fred W. Fleming and Francis M. Wilson, receivers of the Kansas City Railways Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Charles N. Sadler and Louis R. Weiss, both of Kansas City, Mo., for appellants., W. W. McCanles, of Kansas City, Mo., and L. O. Carter, of Kansas City, Kan., for respondent.

TRIMBLE, P. J.

Plaintiff's action is for damages received in a fall while alighting from a street car, alleged to have been caused by defendants' negligence. She recovered judgment for $5,636, from which defendants have appealed.

The petition set forth that' about 10 minutes to 3 o'clock in the afternoon of January 25, 1922, plaintiff being a passenger for hire on a Thirty-First street car which had reached its usual stopping place at the intersection of said street with Brooklyn avenue, and had stopped to allow passengers to leave, and while plaintiff was in the act of leaving the car at the front end thereof, using due care on her part, the car was "suddenly, violently, and forcibly started forward before plaintiff had time and an opportunity to step off the step of said car onto the pavement safely, thereby throwing the plaintiff off said car onto the pavement and breaking her leg," etc., and inflicting upon her other painful injuries of a permanent and lasting nature.

The petition charged that the injuries were caused by the negligence of the operatives in charge of the car, in that the "motorman in charge of said car opened the front end door thereof for the purpose of allowing and permitting passengers to leave said car, and said motorman was in a position to and could have seen the dangerous and perilous position and situation in which the plaintiff was located, in getting off said car, and could and should, by the exercise of proper care and caution, have allowed and permitted said car to remain and be at a standstill long enough to permit and allow the plaintiff to safely alight therefrom. That, notwithstanding the duties and obligations devolving upon the defendants, their agents, servants, and employees, in allowing and permitting said passengers and particularly this plaintiff to disboard and leave said car in safety, said motorman and conductor in charge thereof started the said car without giving the plaintiff any notice or warning whatsoever that said car was about to be and would be started suddenly and violently forward while she was in the act of leaving said car, and said motorman and conductor did start said car forward, thereby throwing this plaintiff off said car and onto the street, causing the injuries to the plaintiff as aforesaid."

The answer admitted defendants were receivers in charge of and operating the street car system, but denied generally every other allegation of the petition.

The evidence in plaintiff's behalf tended to prove that plaintiff, a married woman 44 years of age, was a passenger for hire on one of defendants' street cars on Thirty-First street, traveling thereon to Brooklyn avenue; that the car stopped at the usual and regular stopping place, and her sister, who was going with her, got off at the front end of the car, followed by two men who also got off, and plaintiff followed immediately after; that the car was standing still when she started to step from the car to the ground, holding onto the rail with her right hand; that before her right foot reached the ground the motorman started the car, "seemingly it was with a lurch—a quick start"; that she fell in a squatting position at the foot of the steps, her full weight on her right foot, and just as close to the car as a step therefrom would naturally be; that the car, after thus starting and throwing her, went on its way without again stopping; that her right ankle was broken, requiring the setting of two bones.

The evidence was further that when the car started she was standing with her left foot on the car step, her right hand on the rail, and her right foot stepping out from the car going towards the ground; that the car was east bound and she was facing diagonally to the southeast; that the movement of the car caused her to lose her hold on the rail and she went down in a squatting position in a heap, with the right foot "turned right out."

Plaintiff's sister, who got off the car first, testified that she was followed off the car by two men passengers, and as she looked back plaintiff was stepping down from the car with her left foot on the car step and her "other foot on the ground when "the car started up with a jerk" and she fell, going down in a sitting position with her full weight; that the car started "with a sudden jerk"; that plaintiff was just stepping off as she (witness) turned to look at her.

An employee in the front window of an adjacent store was looking out the front window and testified he saw plaintiff fall, that the car came up Thirty-First street and plaintiff was about the third party to get off. She got off facing the street, with one foot "nearly on the ground, and the car started up and threw her on the pavement," that the car slowed up a little about the middle of the block but did...