Huntington v. Kansas City Rys. Co.

• Decision Date: 13 June 1921
• Docket Number: No. 14022.,14022.
• Parties: HUNTINGTON v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

233 S.W. 95

HUNTINGTON v. KANSAS CITY RYS. CO.

No. 14022.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Rehearing Denied July 7, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Nettie M. Huntington against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. E. Ball ant. Gabriel & Conkling, all of Kansas City, for appellant.

Davis & Woodruff, of Kansan respondent.

TRIMBLE, P.

For the second time this case comes here on appeal. Plaintiff was a passenger on an interurban car, which, at the time of her alleged injury, was being operated on the streets of Kansas City, Mo., and under the traffic agreement between the, defendant herein and the interurban company, pursuant to the ordinance regulating the same, the interurban car and its operatives were, so far as traffic on the city streets was concerned, agencies of the defendant, and it was responsible for any negligent injuries occurring during the course of such city traffic. On the former appeal the case was reversed and remanded solely because the traffic agreement and the ordinance, which made the defendant liable for any negligent injury occurring on the interurban car operating over the city streets, were not pleaded. See Huntington v. Kansas City Rys. Co., 220 S. W. 1011. On the second trial, from which this appeal comes, the petition was amended so as to cure the defect,. and the case now comes to us on the merits.

The petition alleges that when the car on which plaintiff was riding as a passenger reached Nineteenth and Walnut streets, in Kansas City, it was brought to a stop for the purpose of allowing plaintiff and other passengers to alight; that when the car stopped plaintiff went to the exit provided therefor, and

"while plaintiff was in the act of alighting from said car, and before she had alighted, * * * the agents * * * of defendant who were then in charge of and operating said car negligently and carelessly started said car, thereby throwing plaintiff violently to the pavement and injuring her," etc.

The answer was a general denial. The evidence tends to show that plaintiff was a passenger on the car at the place above mentioned. According to plaintiff's evidence the car came to a stop at Nineteenth and Walnut streets. Plaintiff walked out to and down the steps to the last one on the car and was just in the act of stepping from it to the ground when the car started, throwing her to the pavement; she striking on her left elbow. A gentleman preceded her and was the only other passenger who got off there. As plaintiff walked to the steps, she passed immediately in front of the conductor, who was standing in the vestibule from which the steps led to the ground. She said she walked down the steps and had her right foot on the last step and had her left foot in the air in the act Of stepping to the ground when the car started, and it threw her feet from under her and she "came down in a flash on the pavement, alighting on my left elbow, with my full weight on my left elbow and stretched full length on the pavement," her head toward the east, her feet toward the west, and her face to the south. The car had stopped at the usual stopping place. It was standing perfectly still while she walked from her seat to the steps and down them, and remained motionless until she reached the last step, as above stated.

The gentleman who preceded plaintiff testified that he had gotten off the car and was from 10 to 15 feet from it, and, turning around, saw the car was beginning to move and plaintiff was in the act of falling. He said it was hard for him to state how far the car had gone, but thought it was not less than 5 nor more than 10 feet. It was just moving. As he remembered, she fell to in a southeasterly direction to the step "rather off with—and about half directly the opposite way from the car was moving." After she fell the car went on around the curve a little and then the conductor got off and came back to where she was. Witness was the only passenger who got off besides the plaintiff. He stated on cross-examination that he "stepped back and turned around facing the car immediately," and the lady was then falling. She had not yet struck the ground. He had not gotten to the sidewalk when he turned around. Her feet, or at least one of them, were on the lower step when he turned around.

Plaintiff introduced the evidence of two other witnesses and defendant offered the evidence of another witness, but, although the record shows that these witnesses testified and were cross-examined, their evidence is not preserved or brought up in the abstract. We have no means of knowing what was the subject-matter of these witnesses' testimony.

According to defendant's evidence as given by the conductor, he was a school teacher and had only worked four weeks as a conductor. He testified that his car made a "safety stop" at Nineteenth and Walnut and then "just beyond" is the regular stop; that the first time he noticed plaintiff particularly was just after the car had started up after its stop at the regular stopping place; she was then standing just inside the car door, that is, just inside the body of the car; that he gave the signal to start and the car was barely moving when she came out on the platform and stood on the first step and hesitated, leading him to think she did not want to get off there; that he was standing on the platform about two feet from her; that she stood there a few seconds, looked straight out of the car, not down at the steps, and then took the other step out before he could stop her; that he gave the emergency stop signal and the car stopped in the next five or six feet; that before it stopped he jumped off and ran back to her, and found her lying in the street partly dazed, and when asked as to her injuries complained of her arm; that at the time she left the car the front trucks were probably on the curve and the car was in motion. On cross-examination he said the vestibule was about three feet by four in size, that he was standing in the vestibule and plaintiff came in front of him; that he thought she was going to stand at the steps and ride to the next stop, a "pretty long block" away; that he had allowed passengers to do that before the accident, but the plaintiff's injury had taught him a lesson. He said the car stopped for the purpose of allowing passengers to alight. He was then asked:

"Q. And you were, of course, in the habit of watching passengers until they get clear of the car, weren't you? A. I am now. [Italics ours.]

"Q. But you did not at that time? A. I cannot say that I did. As say, I had only been working four weeks. The work was entirely new to me, and there is quite a bit to watch.

"Q. I see. So this accident taught you that lesson too, did it? A. taught me several."

The only other witness to the injury whose in that it would not straighten out, evidence is preserved in the record is that of a man on the sidewalk, who was approaching the corner. When he first saw plaintiff she was "making, it looked like, a nose dive right out of the car, and it seemed like she was getting off backwards." The car was in motion and was making the turn. He did not see what position she was in when the car started.

Plaintiff was helped to a nearby seat. She was moaning and complaining of her arm. Afterward she went a block and a half to her nephew's. She reached there in a shocked and unstrung condition. An automobile took her home. Dr. Curley was called, and he reached her within 15 minutes. He placed a bandage about her arm. Dr. Curley did not testify, as he was in France at the time of the first trial and out West at the time of the second. At the time of his visit the arm was swollen and pained her greatly, and continued so through the night. It pained her so severely that the bandage had to be removed.

The...