Lackey v. Missouri & Kansas Interurban Railway Company

• Citation: 264 S.W. 807,305 Mo. 260
• Decision Date: 27 August 1924
• Docket Number: 24006
• Parties: GUSSIE M. LACKEY v. MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

264 S.W. 807

305 Mo. 260

GUSSIE M. LACKEY v. MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY, Appellant

No. 24006

Supreme Court of Missouri

August 27, 1924

Motion for Rehearing Denied August 27, 1924.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed (upon condition).

Bowersock & Fizzell for appellant.

(1) The evidence did not show any negligent act on the part of defendant. Lee v. Jones, 181 Mo. 291; Davis v Railroad, 155 Mo.App. 312; Removich v. Construction Co., 264 Mo. 43; Deskins v. Railroad, 151 Mo.App. 432. (2) The verdict is so excessive as to indicate passion and prejudice on the part of the jury. Markey v Railroad, 185 Mo. 348; Stolze v. Transit Co., 188 Mo. 581; Newcomb v. Railroad, 182 Mo. 687; Farrar v. Railroad, 249 Mo. 210; Kinney v. Met St. Ry. Co., 261 Mo. 97; Dominick v. Coal & Mining Co., 255 Mo. 463; Lessenden v. Railroad, 238 Mo. 247.

Burns & Watts for respondent.

(1) The court did not err in refusing defendant's demurrer. International Ry. Co. v. Huggen, 45 Tex. Civ. App. 326; Lynch v. Mo. Pac., 92 Kan. 735; Hanlon v. Railroad, 187 N.Y. 73, 10 L. R. A. (N. S.) 411; Younglove v. Pullman Co., 207 F. 797; Steube v. Iron & Foundry Co., 85 Mo.App. 640; Mauerman v. Siemerts, 71 Mo. 101; Young v. Mo. Pac., 93 Mo.App. 267; Fillingham v. Transit Co., 102 Mo.App. 573; Mackin v. People's Ry. Co., 45 Mo.App. 82; Maginnis v. Mo. Pac., 268 Mo. 667; Roper v. Greenspon, 272 Mo. 288; Kennish v. Safford, 193 Mo.App. 362. (2) The verdict is not so excessive as as to indicate passion and prejudice on the part of the jury. Hurst v. Railway, 280 Mo. 566; Miller v. Harpster, 273 Mo. 605.

James T. Blair, P. J. Ragland and Woodson, JJ., concur; Graves, J., concurs except that he thinks the judgment should be reduced to $ 6000.

OPINION

BLAIR

Respondent instituted this action to recover damages for injuries she alleges she received in consequence of a fall from the platform of one of appellant's cars. There was judgment for $ 10,000, and this appeal followed. Appellant contends (1) there was no evidence of negligence; (2) the court erred in admitting in evidence a photograph of respondent's foot; and (3) damages allowed are excessive.

Appellant operates an interurban line between Kansas City, Missouri, and Olathe, Kansas. Respondent became a passenger upon one of its cars. Her destination was Olathe. She was accompanied by her father. There were about thirty other passengers. The platform of the car was three feet and four inches above the street level to which passengers descended at Olathe. The car steps which led down were quite steep and are described as resembling a step-ladder. The evidence tends to show that upon the arrival of the car at Olathe it stopped at the usual place, and the conductor for reasons he stated, respecting certain special cars, was urging the passengers to hurry; that respondent's father descended ahead of her, and then another passenger followed him; the conductor was actively assisting the ladies, and when respondent reached the top of the platform steps he took her by the arm and then looked back into the car; he held to her arm until she started down the steps and then released her and "turned around apparently to help the next passenger" and in doing so he "bumped" against respondent's shoulder just as she had raised her left foot off the platform floor and was stepping down; that this contact threw respondent off balance and her left foot missed the step and she fell or was thrown to the street. An additional abstract shows respondent testified: "Where did the conductor bump you? A. Right back, right on the shoulder, that is, I suppose his elbow, I don't know, but it was a very hard bump. Q. And that had the effect to cause you to step over the steps? A. Yes, sir. Q. Was there any one between you and the conductor when you fell? A. No, sir; the conductor was nearest to me." She testified the push on her back unbalanced her and caused her to fall; that when he touched her on the shoulder she stepped forward and lost her balance and stepped over all the steps and fell on the pavement. Respondent's father testified, in substance, that at the time his daughter fell he was standing on the pavement beside the car steps; that the conductor was "hurrying the passengers up as they came out of the car;" that the conductor took hold of respondent's arm to help her down and respondent was "at the top of the step and had hold of the handrail;" that just as respondent "raised her left foot to step out" the conductor released her arm and turned to help and reached for the lady behind her and "he bumped into" respondent with his elbow and overbalanced her and she fell down the steps. The evidence tends strongly to show respondent was seriously injured. The facts respecting this appear in another connection. There is other evidence tending to weaken this testimony or contradict it, but, under the applicable rule (Buesching v. Gas Light Co., 73 Mo. 219), it is not for consideration on the question of the sufficiency of the evidence to take the case to the jury.

I. Appellant contends there is no evidence which will support a finding of negligence. A passenger is a passenger until he has alighted from the carrier's vehicle, and the carrier owes a passenger who is attempting to alight the usual duty of a very high degree of care imposed by law with respect to passengers. [O'Brien v. Transit Co., 185 Mo. l. c. 268; Craig v. Railroad, 142 Mo.App. l. c. 316; Walker v. Railroad, 178 S.W. 108.] Whether appellant owed respondent a legal duty to assist her to alight is not an important inquiry in this case, since the conductor actively undertook to aid her, and the law is that in making such an effort it was his duty to use due care, and appellant is responsible if respondent was injured by reason of his failure to do so. The authorities are in accord. [Hanlon v. Central Railroad Company of New Jersey, 187 N.Y. 73, 10 L. R. A. (N. S.) 411, and note; 10 Ann. Cases, 366 and note; Williams v. L. & N. Railroad Co., 150 Ala. 324; Ray v. C. & N.W. Railway Co., 163 Iowa, l. c. 432; L. & N. Railroad Co. v. Lee, 140 Ky. l. c. 93; Hager v. P. & R. Railroad Co., 261 Pa. St. 359; Central of Georgia Railroad Co. v. Carlisle, 2 Ala.App. l. c. 517; Younglove v. Pullman Co., 207 Fed. l. c. 803; N. C. & St. Railway v. Newsome, 141 Tenn. 8; 2 Shearman & Redfield on Negligence (6 Ed.) sec. 510, p. 1383.]

In this case if the jury found that in releasing respondent's arm at the moment she says he did and in bumping hard against her just as she lifted one foot to step from the platform down to the first step, the conductor was negligent and that these acts of his precipitated respondent to the pavement, they were justified in rendering a verdict for her, so far as the present question is concerned. Appellant contends that "the mere fact that the conductor bumped into plaintiff will not support the allegation of negligence." "The mere fact" alluded to is not the whole evidence. The evidence justifies a finding that the conductor knew or ought to have known that respondent was at the edge of the platform and that she was just starting to step off the platform down to the first step below it; that in this position of obviously unstable equilibrium respondent very easily would be overbalanced by a bump such as the evidence tends to prove was given her; that with this knowledge and while respondent was in this position the conductor gave her a "very hard bump" from the effects of which she had no chance to protect herself; that this was the result of the conductor's own hurried movement in turning to speed, for appellant's benefit, the next passenger whose turn it would be to alight; that no person other than the conductor was in any way, directly or indirectly, responsible for the "bump" given respondent. The evidence was sufficient to justify the submission of the case to the jury. [Tanchof v. Metropolitan St. Railway Co., 177 S.W. 813; Hanlon v. Central Railroad Co. of N. J., supra; L. & N. Railroad Co. v. Lee, supra; Ray v. Railway Co., supra; Hager v. P. & R. Railway Co., supra; Drew v. Sixth Ave. R. Co., 26 N.Y. 49; I. & G. N. Railroad Co. v. Mulliken, 10 Tex. Civ. App. 663; Louisville Railroad Co. v. Wood, 113 Ind. 544; Schimpf v. Harris, 185 Pa. St. l. c. 49, 50; I. & G. N. Railroad Co. v. Hugen, 45 Tex. Civ. App. 326.]

Appellant cites cases which announce the general doctrines that negligence must be proved, that there can be no recovery for the results of an unavoidable accident, and that the mere proof of an injury or an accident does not tend to prove negligence. These cases are well enough, but are not applicable here. Appellant had the benefit of an instruction covering these principles. The decision in Markle v Pittsburg Rys. Co., 238 Pa 353, is thus summarized in the syllabus: ". . . A nonsuit should be granted where the evidence went no further than to show that plaintiff had tripped over the conductor's ...