Hite v. Metropolitan Street Railway Company
| Decision Date | 12 July 1895 |
| Citation | 31 S.W. 262,130 Mo. 132 |
| Parties | Hite v. Metropolitan Street Railway Company, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied 130 Mo. 132 at 140.
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Reversed.
Wallace Pratt, W. J. Ferry, and I. P. Dana for appellant.
(1) The instruction directing the verdict for defendant should have been given. Plaintiff is confined to the act of negligence pleaded. Waldhier v. Railroad, 71 Mo. 514; Harty v. Railroad, 95 Mo. 368; Schlereth v. Railroad, 96 Mo. 509; Denton v. Railroad, 52 Iowa 161; Carter v. Railroad, 65 Iowa 287; Price v Railroad, 72 Mo. 414. (2) Instruction 12 directing a verdict for defendant should have been given because plaintiff was guilty of contributory negligence. According to this testimony, plaintiff, with full knowledge of the dangers, voluntarily put herself on the outside of an open car next to the curve, and it is impossible for her to tell what occurred or how she came to fall. The plat shows the car traveled, after she lost her head, at least one hundred and ninety feet, and whether she held on from that on, or what she was doing, she can not tell. This much, however, is certain, had she held on, as did the other ladies, she would not have been injured. The physical facts in the light of the undisputed testimony so teach us, and these physical facts are proper to be considered. Spohn v. Railroad, 87 Mo. 74; Gurley v. Railroad, 104 Mo. 211; Hunter v. Railroad, 23 N.E. 9. (3) The damages were excessive. (4) The court should have granted a new trial because of misconduct of the jury.
Beebe & Watson for respondent.
(1) The petition was sufficient and the evidence ample to carry the case to the jury. Coudy v. Railroad, 85 Mo. 79; Dougherty v. Railroad, 81 Mo. 395; Dougherty v Railroad, 97 Mo. 647; Magoffin v. Railroad, 102 Mo. 540; Murphy v. Railroad, 43 Mo.App. 342; Lapointe v. Railroad, 144 Mass. 18; Madden v. Railroad, 50 Mo.App. 666; Clark v. Railroad, 29 S.W. 1013. (2) Plaintiff was not guilty of contributory negligence. Lapointe v. Railroad, 144 Mass. 18. (3) The damages are not excessive. Barr v. City of Kansas, 121 Mo. 22; Smith v. Railroad, 119 Mo. 246. (4) The trial court did not abuse its statutory discretion in refusing a new trial on the ground of alleged misconduct of juror Conway and surprise. State v. Noland, 111 Mo. 473; State v. Parker, 106 Mo. 217; McCullough v. Ins. Co., 113 Mo. 606; Whitsett v. Ransom, 79 Mo. 258; State v. Dusenberry, 112 Mo. 277; Russell v. Oliver, 14 S.W. 262; Broat v. Moore, 47 N.W. 55; Flesher v. Hale, 22 W.Va. 44; Shotwell v. McElhinney, 101 Mo. 676; Tredwell v. Laffoon, 77 Mo. 26; Albert v. Latz, 31 Mo.App. 247; Culbertson v. Hill, 87 Mo. 556; State v. Howard, 118 Mo. 136.
An action for personal injuries sustained by plaintiff who was a passenger on one of defendant's cable cars, in Kansas City, Missouri, 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 seventy 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 six feet to one hundred feet. From the pick-up the train faces north, and runs sixty-four 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 afterward 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 two hundred 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 can not allege one cause of action in his petition and recover upon another cause not stated. Waldhier v. Railroad, 71 Mo. 514; Harty v. Railroad, 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 speed and with a sudden jerk, and that was the direct cause of the injury, plaintiff was not entitled to recover.
The burden was upon plaintiff to establish these facts, by evidence, in addition to the injury, unless it be the law, that, when a person is shown to have been injured without his fault, while the relation of carrier and passenger exists, that the presumption of negligence on the part of the carrier arises, and the burden is on it to overcome that presumption. While it may be conceded that the mere fact that a passenger on board a train of cars is found to be injured, for instance with a bullet hole through his brain, or a limb broken, would raise no presumption of negligence on part of the carrier, the law is otherwise when the injury is shown to have been occasioned by reason of some defect or imperfection of the appliances, or by some omission of duty or negligent act of the servants of the carrier. In such circumstance the presumption of negligence on the part of the carrier arises, and, unless it be overcome by evidence, the carrier will be held liable for the injury.
The evidence on the part of the plaintiff tended to show that the accident resulted from...
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