Hoffman v. Dunham

• Decision Date: 28 January 1918
• Docket Number: No. 12695.,12695.
• Citation: 202 S.W. 429
• Parties: HOFFMAN v. DUNHAM et al.
• Court: Missouri Court of Appeals

202 S.W. 429

HOFFMAN v. DUNHAM et al.

No. 12695.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by Annie Hoffman against Robert J. Dunham and another, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Clyde Taylor, of Kansas City, for appellants. Langsdale & Howell, of Kansas City, for respondent.

BLAND, J.

This is a suit for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,500, and defendants have appealed.

Defendants' first point is that their demurrer to the evidence should have been sustained. The evidence, taken in its most favorable light to plaintiff, shows that on the 12th day of May, 1914, she was a passenger on a south-bound car being operated by defendants upon Delaware street, in Kansas City, Mo.; that when the car reached Ninth street, in said city, it came to a stop for the purpose of permitting passengers to alight therefrom. Plaintiff, who was then seated in the middle of the car, arose, and went to the bottom step of the rear platform. When she reached this point the car suddenly started forward, and plaintiff, not having hold of any portion of the car, attempted, by putting forth her left foot, to retain her equilibrium, but, failing to retain it, she became unbalanced, and stepped with her left foot into a hole in the street below the step of the car. Thereupon her left ankle turned, causing her to fall to her left side. The car after suddenly starting forward, as aforesaid, ran two or three feet and stopped. The hole in the street was about 2 feet long, 2 feet wide, and 6 or 7 inches deep.

Under these facts defendants urge that plaintiff cannot recover because, defendants say, that the way in which she claims to have fallen is contrary to physical laws. This is urged as so because defendants say that, if the car suddenly started forward, plaintiff's feet would have been jerked from under her, and that she would have been found with her feet in the direction the car was going and her head in the opposite direction; citing Scroggins v. Ry., 138 Mo. App. 215, 120 S. W. 731, Daniels v. Ry. Co., 177 Mo. App. 280, 164 S. W. 154, and like cases. In the case at bar there is no claim that the starting up of the car was of such violence as to jerk plaintiff's feet from under her. The facts in this case are entirely unlike those in the Scroggins and Daniels Cases, but are more like the facts in the case of Middleton v. St. Joseph Ry., Light, Heat & Power Co., 196 Mo. App. 258, 195 S. W. 527, although it would appear that the jerk in the latter case was of greater violence than the one in the case at bar. There is nothing in this contention of the defendants.

Plaintiff testified that she was lying on the street in front of the steps when the car finally stopped, and, as there is evidence that the car moved two or three feet after starting up, defendants say that plaintiff could not have fallen in the way she claimed, as, had she been injured in that manner, she would have been found lying behind the car. There being no evidence as to the length of the steps, we are unable to determine whether or not there is any inconsistency in plaintiff's claim with reference to this matter. The steps may have been of such length that the car could have moved two feet forward, and yet plaintiff could have been lying in front of the steps. Of course we are not making a ruling on the point that any matter of this kind could affect the case, even though an inconsistency were shown. The petition alleges that the car stopped to permit plaintiff to get off at a point which did not afford a reasonably safe place for plaintiff to alight, because there was a hole in the pavement at that place; that while she was in the act of alighting, and unaware of the existence of the hole, and before she had a reasonable time in which to alight, defendants' servants negligently caused said car to be started forward suddenly; that plaintiff stepped into said hole in the pavement, and by reason of said car being Si) started up, and by reason of plaintiff's stepping in the hole, she was thrown violently to the pavement and caused to be injured; and that such injuries were directly caused by the negligence of defendants' servants, in this, "that said agents, servants, and employés negligently and carelessly caused said car to start and move forward suddenly, when the plaintiff was in the act of attempting to alight from said car onto the pavement at said intersection; and in this, that the agents and servants of the defendants in charge of said car carelessly and negligently caused said car to be brought to a stop at a point that did not afford a reasonably safe place for the plaintiff to alight, in this, that there was a hole in the pavement at said place."

In plaintiff's instruction No. 2 she abandoned the allegation of negligence contained in her petition as to the negligent stopping of the car, so that she alighted in the...