Holland v. Metropolitan St. Ry. Co.

• Citation: 157 Mo. App. 476,137 S.W. 995
• Parties: HOLLAND v. METROPOLITAN ST. RY. CO.
• Decision Date: 29 May 1911
• Court: Court of Appeal of Missouri (US)

137 S.W. 995

157 Mo. App. 476

HOLLAND v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 29, 1911.

Rehearing Denied June 12, 1911.

1. TRIAL (§ 62)—RECEPTION OF EVIDENCE— REBUTTAL EVIDENCE.

In a personal injury action against a street railway, the plaintiff claimed that a sudden jerk threw her from the car platform, upon which she was standing waiting for the car to stop at the next crossing. The defendant introduced evidence tending to show that she was thrown from the car at a place past the crossing, and, after the close of its evidence, plaintiff was allowed to introduce evidence tending to show that she was thrown off before reaching the crossing. Held, that this latter evidence was proper in rebuttal.

2. TRIAL (§ 156)—NONSUIT.

In considering a demurrer to the evidence, the plaintiff's evidence must be considered as true.

3. CARRIERS (§ 320)—INJURY TO PASSENGER—EVIDENCE—SUFFICIENCY.

In an action against a street railway for personal injuries received by one preparing to alight, evidence held to raise a question for the jury, and plaintiff's case not to be disproven by certain physical facts.

4. APPEAL AND ERROR (§ 1047)—TRIAL (§ 62) —REVIEW—DISCRETION OF TRIAL JUDGE.

The determination of whether evidence is proper in rebuttal is in the discretion of the trial judge, and the admission of evidence not strictly rebuttal in its nature is harmless error.

5. APPEAL AND ERROR (§ 1066)—REVIEW—HARMLESS ERROR.

In an action against a street railway for personal injuries to a passenger, where the petition alleged and the proof showed that the plaintiff gave a signal to stop at one street, but that the car did not stop there, but went on, an instruction requiring the jury to find that the plaintiff signaled for the car to stop at the next street, while a variance, was harmless.

6. CARRIERS (§ 321)—CARRIAGE OF PASSENGERS—PLEADING—VARIANCE.

In an action against a street car company, where the petition alleged and the proof showed that the plaintiff's sister-in-law gave the signal to stop at a certain street, it was immaterial whether the plaintiff signaled or not, so an instruction requiring the jury to find that the plaintiff signaled was not a variance; there being no failure of substantive facts.

7. PLEADING (§ 398)—VARIANCE—STATUTE.

Under the direct provisions of Rev. St. 1889, § 2096, a defendant must make an affidavit that he was misled by a variance in order to take advantage of the variance.

8. WITNESSES (§ 237)—EXAMINATION—QUESTIONS ASSUMING FACTS.

In an action against a street railway company for injuries received by a passenger who was preparing to alight, a question to the conductor, whether there was anything in the plaintiff's appearance or conduct which led him to think she was going to attempt to get off before the car stopped, was objectionable because it assumed that plaintiff was going to get off before the car stopped, which was a controverted matter of fact.

9. CARRIERS (§ 333)—CARRIAGE OF PASSENGERS—CONTRIBUTORY NEGLIGENCE—NEGLIGENCE.

It is not negligence for a passenger in a street car to get up from his seat on giving a signal for a stop and go to the platform and stand on it ready to get off when the car stops.

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

Action by Elizabeth M. Holland against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and T. B. Buckner, for appellant. Conkling, Rea & Sparrow, for respondent.

BROADDUS, P. J.

This is an action for damages alleged to have been sustained by plaintiff while she was a passenger on one of defendant's cars.

The following statement of the issues raised by the pleadings we find to be correct, viz.: "Plaintiff filed her suit claiming she was a passenger on defendant's car on the night of October 8, 1907, intending to alight from defendant's car at Howard and Indiana avenues. That she gave signal for car to stop, but that it did not stop, but only slackened its speed as if to stop at Moulton avenue, the next street south. That before the car stopped she left her seat and went to the rear vestibule to alight when said car came to a stop. Then follows this specific charge: "That, while plaintiff was standing in said vestibule preparatory to alighting, and while in the exercise of ordinary care, defendant's servants and employés in charge of said car negligently and carelessly and without warning to plaintiff caused and permitted said car to suddenly start forward with a quick and unusual motion. That by reason thereof plaintiff was violently thrown from said car, down to and upon the hard and rough pavement of said street, striking her head, right shoulder, and right hip and leg thereon with great force. That, as a direct and immediate result thereof, plaintiff was greatly shocked and rendered unconscious, received a severe and painful scalp wound, her skull was fractured, her neck wrenched, her right arm wrenched, sprained, and bruised, her right leg bruised and injured, her right hip bruised and wrenched out of place, and she sustained a great and severe nervous shock.' That said injuries were permanent. Defendant's answer was a general denial and a plea of contributory negligence."

The case as made by the plaintiff was as follows: On the night of October 8, 1907, respondent with her sister-in-law, Mrs. Wier, boarded appellant's car at Fifth and Delaware streets to go to her home at 2419 Walrond. After paying her fare, she took a seat on the right-hand side of the car intending to get out at the intersection of Indiana and Howard avenues. As the car approached Howard avenue, she rang the bell in the usual manner for it to stop when that avenue was reached. Defendant's servants in charge did not stop the car at said avenue. Next her sister-in-law rang the bell for the car to stop at Moulton avenue, the next street south. After this signal was given, and when the car had gone about half the distance from Howard to Moulton avenue, it slackened its speed in the usual manner as if a stop would be made at the latter avenue. When the speed of the car had begun to slacken, respondent and her sister-in-law left their seats and walked down the aisle to the rear vestibule, passing the conductor on the way. When she reached the vestibule respondent took hold with her left hand of one of the rods across the rear end of the car and stood waiting for it to come to a stop. While so standing, the car was started forward so suddenly as to throw her into the street. She received serious injuries from her fall. On cross-examination she stated that she was thrown with her head pointing in the direction in which the car was going.

The defendant's evidence tended to contradict that of plaintiff as to the manner in which she was injured, and to show that she stepped off the car while it was in motion.

After the close of defendant's testimony, the plaintiff was permitted to introduce William Wier as a witness, who testified as to the place where plaintiff fell which was objected to on the ground that it was not in rebuttal, but evidence in chief. The objection was overruled. The evidence, however, was rebuttal in its character. The appellant had introduced evidence to the effect that respondent left the car north of Moulton avenue, and that the car when it stopped was north of said avenue, and they further testified that there was blood at the place where she fell. Witness Wier testified that he examined the place the next morning and found that the blood referred to was south of Moulton avenue and none north of it.

Mr. Goodright, the defendant's conductor,...