Holland v. Metropolitan Street Ry. Co.

• Decision Date: 29 May 1911
• Citation: 137 S.W. 995,157 Mo.App. 476
• Parties: ELIZABETH M. HOLLAND, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

137 S.W. 995

157 Mo.App. 476

ELIZABETH M. HOLLAND, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 29, 1911

Appeal from Jackson Circuit Court.--Hon. Wm. O. Thomas, Judge.

Affirmed.

T. B Buckner and John H. Lucas for appellant.

Conkling Rea & Sparrow for respondent.

OPINION

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 employees 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 Mounton 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, who was a witness for the defendant was asked by appellant the following question: "Mr. Goodright, when you saw these ladies going back to the vestibule after the signal had been given, I will get you to state to the jury whether there was anything in their conduct or appearance which led you to believe or to think they were going to attempt to get off the car before the car stopped? " The question was objected to by the respondent and the objection was by the court sustained.

Instruction 1 and the one on the measure of damages given at the instance of plaintiff were objected to by appellant. Said instruction 1 reads as follows: "The court instructs the jury that if you find and believe from the evidence in this case that on or about the 8th day of October, 1907, defendant was operating the car mentioned in evidence for the purpose of carrying passengers for hire, and that on or about said date plaintiff was a passenger on said car; that she gave a signal, in the manner provided by defendant, for said car to stop at Moulton Avenue in order that she might leave the same, and that said Moulton Avenue was a regular and customary stopping place for defendant's cars; that after giving said signal for said car to stop plaintiff took a position on the rear platform of said car in full view of the conductor, for the purpose of stepping off when said car stopped, and that the employees of defendant in charge thereof failed to stop said car at said avenue in obedience to plaintiff's signal, but slackened its speed as if intending to stop the same, and after passing said Moulton Avenue they negligently caused...