Laa v. Kansas City Rys. Co.

• Decision Date: 13 June 1921
• Docket Number: No. 14026.,14026.
• Parties: LASS v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

233 S.W. 70

LASS v. KANSAS CITY RYS. CO.

No. 14026.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Rehearing Denied July 7, 1921.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

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

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

Swearingen & Finnell, of Kansas City, for respondent.

TRIMBLE, P.

Plaintiff's action is to recover damages sustained on account of personal injuries received in being thrown to the pavement while in the act of alighting from defendant's street car. She suffered a broken arm; her head and face were bruised and wounded so that the latter was bloody when she was picked up; her hip was bruised; and when she breathed it hurt her to inhale. She recovered judgment for $1,000, and the defendant has appealed.

The testimony of plaintiff and her witnesses tended to prove that she was a passenger on defendant's south-bound Marlborough car, and as it was approaching Fiftieth street she rang the bell to notify the operatives of the car that she desired to alight there. She was seated about three seats from the rear end, and she arose and went to the rear vestibule. The car stopped at the usual stopping place, and when it did so a man by the. name of Steward (one of plaintiff's witnesses) got off the car ahead of plaintiff. Plaintiff then attempted to step off, and as she was doing so the car started up, went a short distance, and stopped again. The starting of the car while plaintiff was in the act of alighting threw her to the pavement and injured her as hereinabove stated. Steward said the car was at the usual stopping place and was standing still when he got off; that he "made three steps on the ground toward the front end of the car, heard a scream, looked around, and saw the car in motion and plaintiff "piled upon the street." According to another of plaintiff's witnesses who was on the car, but who did not see plaintiff fall, the car stopped before she got off, then started up, and ran about a car length, when the conductor gave the motorman the stop signal and it stopped again. Other witnesses, who did not see the fall, testified to the car thus stopping twice and then seeing or learning that some one was hurt. The car was crowded.

The defendant's testimony tended to prove that just before the car reached its usual stopping place at Fiftieth street, the plaintiff stepped off the car while it was yet moving, and received her injury in that manner, and that the car did not stop but once.

The petition alleged that as the car approached Fiftieth street plaintiff gave the signal, and the car came to a stop at the usual stopping place, whereupon plaintiff attempted to alight, "but before she had time to leave the same, and while she was in the act of stepping from the lower step on said car to the pavement, and before she had reached a place of safety, the defendant, by its agents, servants, and employs in charge of said car, negligently and carelessly and without warning to plaintiff started said car with a sudden jerk, whereby plaintiff, without fault or negligence on her part, was thrown violently to the street," etc.

[] Plaintiff's instruction, after submitting the usual and necessary' issues as to plaintiff's being a passenger, her signaling to stop and the stopping of the car at the usual place, continued:

"And if you further find from the evidence that while plaintiff was alighting from said car, or in the act of stepping from the lower step of said car to the street pavement, and that she was exercising ordinary care for her own safety, and if you further find that before she had reasonable time to alight from said car, it was suddenly and negligently, and without warning to plaintiff, started forward with such force as to throw plaintiff to the street and injure her," then the verdict should be for plaintiff, if the jury found she was damaged as a result of such negligence, if any.

We have italicized the portions which bear on the point made by defendant that the instruction does not follow the petition in that the petition says the car started with a sudden jerk, but the instruction does not submit the issue of a jerk.

The gist of the negligence averred is in the premature starting of the car while plaintiff was in the act of alighting and' before she had reasonable time to do so. It is true the petition characterizes the premature start as being with a sudden jerk.; but, while the instruction does not use the word "jerk," it does use words which convey practically the same idea—i. e., that the car "suddenly * * * started forward with such force as to throw plaintiff to the street." And plaintiff's evidence is in keeping with the petition and the instruction. We are unable to uphold defendant's contention that reversible error was committed in this regard. Nelson v. Metropolitan St. Ry. Co., 113 Mo. App. 702, 88 S. W. 1119; Baldwin v. Kansas City Rys. Co.,...