Hite v. Metropolitan St. Ry. Co.

• Decision Date: 04 June 1895
• Citation: 130 Mo. 132,31 S.W. 262
• Court: Missouri Supreme Court
• Parties: HITE v. METROPOLITAN ST. RY. CO.<SMALL><SUP>1</SUP></SMALL>

31 S.W. 262

130 Mo. 132

HITE v. METROPOLITAN ST. RY. CO.¹

Supreme Court of Missouri, Division No. 2.

June 4, 1895.

INJURY TO PASSENGER.

Plaintiff, while on defendant's cable car, was thrown off by a sudden jerk of the car while rounding a curve. Plaintiff knew that the cars went at greater speed around that particular curve, and was cautious to avoid being thrown off. There was no defect in the appliances or

in the construction of the road, nor were the employés negligent. The evidence showed that the only practicable way to round the curve was to go at the speed of the cable; that the jerking was greater or less as the cable was slack or taut; that no method had been discovered to avoid these difficulties. Held, that the accident was not of a character for which defendant was liable.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by Jessie C. Hite against the Metropolitan Street-Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

I. P. Dana, W. J. Ferry, and Wallace Pratt, for appellant. Beebe & Watson, for respondent.

BURGESS, J.

An action for personal injuries sustained by plaintiff, who was a passenger on one of defendant's cable cars, in Kansas City, Mo., by being thrown from the car by reason of its negligent management in being run "at a careless and rapid rate of speed, and with a jerk," while rounding a curve at the east end of the Twelfth Street Line. The case was tried before a jury, which rendered a verdict in favor of plaintiff in the sum of $4,950. Defendant then filed motions for new trial and in arrest, which were overruled, and it appealed.

The accident occurred on the afternoon of August 4, 1891. Plaintiff was thrown or fell from the car, the fall resulting in a fracture of the skull at the base of the brain, and other injuries. Just before the car reached the point of the curve where the accident occurred the speed of the train was increased. It made a sudden lunge, and she was thrown or fell out onto the ground. She was accustomed to riding on the cars around this curve, and knew the danger attending it, and that sometimes it was more dangerous than others, depending upon the smoothness or roughness with which the curve was rounded. At the end of the line where the accident happened there is a loop so as to permit the cars to turn around and go back upon the same street. The loop has two curves, about 70 feet apart. The train coming from the west stops, facing east, at the usual stopping place, just before reaching the first, or south, curve. It then rounds the first curve, on a down grade, by momentum, the road being so constructed that the cable rope can be picked up at the end of the first curve while the train is in motion. From the pick-up to and around the second curve there is a rise in the grade of 6 feet to 100 feet. From the pick-up the train faces north, and runs 64 feet, until it reaches the second, or east, curve, and this it rounds until the straight track is reached, leaving the train facing west. The only witnesses who seemed to know anything about the matter testified that the only practicable way to operate a cable road around this second curve on the up grade is at the full speed of the cable rope, and in passing around it there are jars and jerks incident to its movement, that sometimes the jars are greater than at others, depending on whether the rope is slack at the curve when the train reaches that point, and, that no known method has been discovered by which these difficulties can be avoided. Plaintiff boarded at a hotel just south of and adjoining the first curve. On the morning of the accident she and a couple of lady friends started to town, boarding a car on the same line on which the accident occurred, at the stopping place just west of the first curve. She then informed them of the danger of rounding the curve, and that they must hold on, but on that trip the train went round with little jarring. On the same evening they again boarded a train at the same place for a similar purpose, when plaintiff again warned them of the danger of rounding the curve. Her friends, Mrs. Bowles and Mrs. Miles, took seats on the north side of the car, while plaintiff took a seat on the south side. At her request, Mrs. Bowles afterwards took a seat with her, on the inside, next to the aisle, which left plaintiff seated on the outside of the curve, the most dangerous position. The car was an open one, and as it proceeded on, passed around the first curve, and had gone about 200 feet, and while rounding the second curve, plaintiff fell from the car. She testified that while the train was rounding the curve she had a firm hold on the back of a seat, and had her feet braced, but notwithstanding this she was thrown off.

Defendant's first contention is that the court committed error in refusing to instruct the jury to return a verdict for defendant. The cause of action alleged in the petition is "that defendant so ran its cars around said loop at a careless and rapid rate of speed, and with a sudden jerk," so as to cause the injury complained of. It is argued that at most the allegation is that the rate of speed was negligence, and that plaintiff is confined to the action of negligence pleaded. It is well-settled law that a plaintiff cannot allege one cause of action in his petition and recover upon another cause not stated. Waldhier v. Railroad Co., 71 Mo. 514; Harty v. Railway Co., 95 Mo. 368, 8 S. W. 562. It must therefore follow that unless defendant's servants in charge of the cars at the time of the accident were guilty of negligence in running around the loop at a careless and rapid rate of...