Horr v. Kansas City Elevated Ry. Company
| Decision Date | 29 May 1911 |
| Citation | 137 S.W. 1010,156 Mo.App. 651 |
| Parties | ANNA HORR, Respondent, v. KANSAS CITY ELEVATED RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
Judgment reversed and cause remanded.
John H Lucas, C. S. Palmer for appellant.
(1.) The court erred in admitting the immaterial testimony of Jesse Horr, as to the condition in which he found his wife the evening after the accident. Greenleaf on Evidence (13 Ed.), sec. 52; Smith v. Young, 26 Mo.App. 515; Gorham v. Auerswald, 53 Mo.App. 131; Ritter v Bank, 87 Mo. 574. (2) The physical facts show that plaintiff could not have been thrown from the car in the manner testified to by her, and the verdict rendered upon evidence contradicting well-known physical laws will be reversed. Scroggins v. R. R., 138 Mo.App. 215; Nugent v. Milling Co., 131 Mo. 241; Payne v. R R., 136 Mo. 562; Weltmer v. Bishop, 171 Mo. 110.
Henry J. Latshaw and W. D. Sumner, for respondent.
Action for damages for personal injuries plaintiff alleges were caused by the negligence of defendant. The evidence of plaintiff tends to show that she and her mother-in-law were passengers on an electric street car operated by defendant; that they gave the usual signal for the car to stop at the street corner where they wished to alight; that, as the car slowed down, plaintiff arose and stepped into the rear vestibule where she stood resting her hand on a horizontal rod attached to the car and that just before the car reached the stopping place the motorman turned on the power in a way to jerk the car violently forward, and to throw plaintiff out of the vestibule door into the street and injure her. Further, it appears from the evidence of plaintiff, in corroboration of her theory that the car gave a sudden and violent forward lurch, that her mother-in-law, who had just arisen from her seat, was thrown back into the seat and hurt.
The evidence of defendant very strongly tends to support its contention that there was no jerk of the car; that the mother-in-law was not thrown back into the seat, and that plaintiff, in saying goodbye to her companion, (who was not intending to leave the car at that place), inadvertently stepped off the platform while the car was in motion and fell to the pavement.
The cause is before us on the appeal of defendant from a judgment recovered by plaintiff.
The argument of defendant that plaintiff's version of her injury is so contrary to all known rules of physics as to be incredible is clearly not well grounded, and we shall waste no words on it. The injury could have occurred in the way she claims it did and it was for the jury to say whether or not it did happen in that way. But we agree with counsel for defendant that the court committed prejudicial error in the admission of evidence to which we shall refer. The father-in-law of plaintiff, who was not present at the injury and knew nothing about it until he returned home that evening, was interrogated, over the objections of defendant, about the condition in which he found his wife,--plaintiff's companion at the time of her injury. We quote the testimony: Then came objections by defendant, argument of counsel, and the overruling of the objections, followed by this question: "In other words, was she sick when you got home and for sometime after that?" The witness answered, "She was lying down." Defendant moved to strike out the answer and the motion was overruled. Then counsel for plaintiff asked "How long has she been in that condition after this?" Answered, "She has never gotten over it yet."
The motion of defendant to strike out the last answer was...
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