Kalver v. Metropolitan Street Railway Company
| Decision Date | 03 June 1912 |
| Citation | 148 S.W. 130,166 Mo.App. 198 |
| Parties | ABRAHAM KALVER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Charles N. Sadler for appellant.
H. J Latshaw and Jesse E. James for respondent.
Plaintiff sued to recover damages for personal injuries caused by the derailment of an electric street car operated by defendant on Independence avenue in Kansas City. The petition alleges that plaintiff "was lawfully upon said Independence avenue and upon the south side thereof . . . when one of defendant's eastbound electric cars was on account of the carelessness and negligence of defendant . . . allowed, permitted and caused to run off of the track and leave the track and to run over said street and the pavement thereon to or near the south side of said street and near which plaintiff was standing and working, thereby throwing, pushing and shoving said wagon and forcing said wagon with great force and violence against the sidewalk and building on the south side of said street thereby greatly injuring plaintiff." The answer is a general denial. The trial resulted in a verdict and judgment for plaintiff for eight hundred dollars. Defendant appealed.
Independence avenue runs east and west, is paved with asphalt and at the place in question is a business street. Defendant operates a double track street railway on this street, the south track being used for east bound cars. The distance between the south rail of this track and the curb is thirteen feet and eight inches and the distance from the curb to the property line nine feet and six inches. Plaintiff operated a feed store on the south side of the street. His one horse delivery wagon was standing in the street next the curb and plaintiff and his son were loading the wagon from the store. The front wheels of an eastbound car, running eight or ten miles per hour, suddenly jumped the track and turning southward ran to and on the curbing crashing into the wagon and horse just as plaintiff emerged from the store carrying a bale of hay. Plaintiff testified:
The horse was killed and the wagon was demolished. Whether the wagon, horse, bale of hay, or all three inflicted the injuries, which consisted of numerous bruises and contusions, is not made clear in the evidence. The statement of plaintiff that the horse kicked him appears from all the facts and circumstances to be a mere supposition. The definite facts disclosed by his evidence are that the front end of the car struck the horse and wagon, throw them on the sidewalk and in turn one or both of them hit plaintiff who was on the sidewalk and injured him. Plaintiff did not allege and in his evidence in chief did not attempt to show the cause of the derailment. At the close of his evidence defendant requested the giving of a peremptory instruction but the request was refused and defendant then introduced evidence to the effect that the derailment was accidental. It was shown that there was no defect in the track or in the car and experts testified that sometimes derailments occur under such conditions. Over the objections of defendant plaintiff in rebuttal was permitted to introduce evidence tending to show that some of the stone or granite blocks set on each side of the rail had become loose and out of place, and that three of these blocks were lying on the surface of the street, and from the facts and circumstances appearing in this evidence the inference is reasonable that the derailment was caused by one of the front wheels striking and running over a broken part of one of these blocks, and that preceding cars that day had struck these obstructions but had not been derailed. The paving of which the granite blocks had been a part was laid by defendant and it was admitted at the trial that an ordinance was in force which required defendant to pave the street in between and eighteen inches on the outside of its tracks.
Counsel argue that the court erred in overruling the peremptory instructions asked by defendant at the close of plaintiff's evidence and again at the close of all the evidence. First it is insisted that the petition does not state a cause of action and that the defect is of such character that it was not cured by verdict.
The statute (section 1794, Revised Statutes 1909) provides that a petition must contain "a plain and concise statement of the facts constituting a cause of action without unnecessary repetition."
"The whole theory of the practice act is that facts and not conclusions should be pleaded." [Humphreys v. Milling Co., 98 Mo. 552, 10 S.W. 140.]
"A...
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