Klass v. Metropolitan Street Railway Co.
| Decision Date | 03 March 1913 |
| Citation | 155 S.W. 57,169 Mo.App. 617 |
| Parties | HARRY KLASS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas for appellant.
Joseph P. Fontron for respondent.
--Plaintiff sued to recover damages sustained by him in consequence of an injury to his wife which he alleges was caused by negligence of defendant. The answer is a general denial. Plaintiff prevailed in the circuit court and the cause is here on the appeal of defendant.
The injury occurred July 17, 1909, at 10:30 p. m., at the intersection of Eighteenth street and Prospect avenue in Kansas City. The evidence of plaintiff tends to show that his wife and their son, who was twelve years old, were passengers on an eastbound electric street car operated by defendant on Eighteenth street; that when the car stopped at a regular stopping place on the west side of Prospect avenue, they proceeded to alight for the purpose of transferring to a southbound Prospect avenue car and that while Mrs. Klass was stepping from the rear vestibule to the first step and was holding to the handhold, the car suddenly started forward and threw her to the pavement.
The evidence of defendant is to the effect that the car stopped to receive and discharge passengers at the west side of Prospect avenue and remained stationary until after Mrs Klass had fallen and had been assisted by the conductor and a passenger to the Prospect avenue car. The conductor states that Mrs. Klass alighted in safety and started to walk to the sidewalk when she stepped into a hole in the pavement, turned her ankle and fell. Defendant insists that the court erred in refusing its request for a peremptory instruction and the principle ground of the contention is that the evidence of plaintiff relating to the cause of the injury is so weak and contradictory and so opposed to the plain physical facts of the occurrence that it should be rejected as insufficient to raise an issue of fact.
On account of her disqualification as a witness Mrs. Klass did not testify and the evidence of plaintiff on the subject of the cause of her fall consisted entirely of the testimony of the boy who states he accompanied his mother and witnessed her fall. According to his testimony he preceded his mother and alighting just as the car was coming to a dead stop, turned around and watched her. At that time she was in the vestibule approaching the steps and when she was about to take the first step and was holding with one hand to a handhold (the witness could not remember which hand), the car started forward with a jerk and ran across the street before stopping. The sudden and unexpected starting of the car caused Mrs. Klass to pitch forward and fall to the pavement. We quote from the cross-examination:
Of this evidence, counsel for defendants says in his brief:
Of course we are not bound to give any consideration to the testimony of a witness that is repugnant to undisputed and indisputable physical facts and laws, but we do not regard the testimony of this witness as falling under that rule. Counsel for defendant assert that in the position occupied by Mrs. Klass, as described by the witness, the certain effect of a sudden forward start of the car would have been to throw her westward against the rear end of the vestibule and not forward, but it must be borne in mind that several opposing and mutually modifying forces were brought into action, viz First, the jerk of the car which, if not interfered with, would have thrown the woman in the opposite direction; second, the force produced by the movement of Mrs. Klass in leaving the car which, at the time, was exerted in a direction at right angles to that of the motion of the car; third, the resistance to the suddenly introduced force offered by the handhold and, fourth, the...
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