Kohr v. Metropolitan St. Ry. Co.

• Decision Date: 05 February 1906
• Parties: KOHR v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

92 S.W. 1145

117 Mo. App. 302

KOHR v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied March 3, 1906.

1. CARRIERS — INJURIES TO PASSENGER — EVIDENCE.

In an action for injuries to a person attempting to board a street car, where it is shown that the usual signal for starting the car was given at such a time as to cause injury to the plaintiff, the presumption is that it was given by the conductor.

2. SAME. — NEGLIGENCE.

Where other persons had boarded a street car before the plaintiff, and she attempted to board it while it was still standing, the conductor's failure to see her, and his act in starting the car while she was attempting to board it, was negligence.

3. EVIDENCE — CONCLUSION OF WITNESS.

In an action for injuries to a person attempting to board a car, where a witness testified that he was familiar with the sound of a gong used by the gripman, as distinguished from the sound of the bell the conductor used for starting signals, his further testimony that it was the bell to start the car he heard ring at the time of plaintiff's injury was not inadmissible as a conclusion.

4. TRIAL — INSTRUCTIONS — STATEMENT OF ISSUES.

An instruction authorizing the jury, if they find for the plaintiff, to assess the damages received by her as the direct result of the negligence of defendant, without any further reference to the issues in the case, and leaving the jury to determine them, was error.

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by Marion C. Kohr against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

John H. Lucas, for appellant. Boyle, Guthrie & Smith, for respondent.

BROADDUS, P. J.

The plaintiff's suit is for damages alleged to have been sustained as the result of the negligence of the defendant. The gist of the petition is that, while the plaintiff was in the act of boarding one of the defendant's cars as a passenger at Twelfth and Main streets, Kansas City, Mo., the defendant's conductor gave the signal for starting, and the car suddenly started forward and threw her to the ground, injuring her; "that the plaintiff's position at the time the conductor gave such signal at the time said car was started was such that the said conductor knew, or by the exercise of reasonable care could have known, the position and danger of plaintiff; and that the probable result of the giving of said signal and the sudden starting of said car would be to the injury of the plaintiff." The trial resulted in a judgment for the plaintiff, and the defendant appealed.

The defendant's principal contention is that the court erred in not directing a verdict for it, as asked upon the close of the evidence. It was shown that the car plaintiff attempted to board was a cable car being operated on Twelfth street. The car was going west, and had crossed Main street, and stopped at the usual place for taking on and discharging passengers. The plaintiff and a man by the name of Huber, her escort, were together at the place mentioned to take passage on the car. The plaintiff, in her testimony on her examination in chief, testified that when she had placed one of her feet on the step of the car, and as she raised the other to get on, the conductor gave the signal for starting, and the car suddenly started forward, and that she held to the railing for some distance when she was thrown to the ground. Upon cross-examination, she stated that "I put my foot upon the car and grasped the handle as was my custom, and just as I placed my foot on the step and grasped the handle of the car a signal was given and the car was jerked forward throwing me." And further stated that she did not know at what period the bell was rung, whether before or after she fell. Huber, her escort, testified that plaintiff put her foot on the step to get on the car, the bell rang, and the car started, and the result was she fell down, and that at the time she had hold of the handle of the car. He was asked these questions: "Mr. Huber, did you hear the bell of the car rung that evening?" He answered: "I did." "Where were you and Miss Kohr at the time the bell was rung?" Answer: "She was just in the act — just had her first foot on the step and was in the act of taking another step when the bell was rung." He did not see any one ring the bell, and did not know where the conductor was at the time, and did not know whether the bell that was rung was on the coach or grip car. The conductor testified that he rang the bell, but that it was the emergency bell, and was not rung until after plaintiff fell. He denies seeing plaintiff before the...