Lamport v. General Accident, Fire & Life Assur. Corp.

• Decision Date: 16 July 1917
• Docket Number: No. 18240.,18240.
• Citation: 197 S.W. 95,272 Mo. 19
• Court: Missouri Supreme Court
• Parties: LAMPORT et al. v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP., Limited.

197 S.W. 95

272 Mo. 19

LAMPORT et al. v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP., Limited.

No. 18240.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Rehearing Denied July 27, 1917.

Appeal from Circuit Court, Jackson County; Olaf A. Lucas, Judge.

Action by Edward J. Lamport and another against the General Accident, Fire & Life Assurance Corporation, Limited. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is a suit upon a policy of accident insurance to recover the sum of $10,000 for the loss of the left hand above the wrist. The policy provided an indemnity of $10,000 for loss of life, and, among other things, provided for paying a like amount for loss of one hand by severance at or above the wrist, if the injury be sustained "while a passenger in or on any regular passenger conveyance provided by a common carrier (including the platform, steps, or running board of railway or street railway cars)." The policy was dated August 1, 1911, and was for a period of three months from its date. In the schedule of warranties contained in the policy, it is stated that the beneficiary named in the policy, Mamie Lamport, is the wife of the insured; that the insured had no other accident or health insurance, except a $5,000 policy in the same company; that his income per week exceeded the gross amount of weekly indemnity under all policies carried by him; and that his habits of life were correct and temperate. Trial was had before the circuit court of Jackson county, resulting in a verdict and judgment for the plaintiff. Thereupon the defendant duly perfected an appeal.

The accident occurred about 10 o'clock p. m., August 10, 1911, at the street car stop at the entrance to Fairmount Park, near Kansas City, Mo. A considerable crowd of people who had been patronizing the park were waiting for a street car. Plaintiff was in this crowd. The number in the crowd was estimated, by the different witnesses, at from 20 to 200 or 300 people. As the street car was about to stop for the purpose of receiving passengers from this crowd, plaintiff jumped onto the front step thereof and took hold of the handhold. The car then moved about 20 feet farther, with him in this position, when he fell from the step, and while the car was moving slowly it ran over his left hand, necessitating the amputation thereof.

Witnesses produced by plaintiff narrated the occurrence as follows:

Louise Ruyssers testified that she and her three sisters were in the crowd waiting for the car, and that they were standing near the track as the front end of the car passed them, and that something "gave her sister such a knock that she was forced to step back in order to gain her balance." The witness then heard some one scream that a man was hurt. She then turned and saw the plaintiff on the ground, on his back, lying parallel with the car, with his head toward the front end of the car. The plaintiff was groaning.

Sophie Ruyssers corroborated the above testimony of her sister, and said that it must have been the man on the car that brushed against her sister. They next noticed the man lying on the ground with his hand crushed.

Matilda Ruyssers corroborated the testimony of her sisters, and said that some one on the front end of the car brushed by her, and that she had to step back to gain her balance; that she was not hurt, but that her balance was disturbed; and that she fell back against her sister.

Dr. Richard Callaghan, the local surgeon for one of the railroad lines entering Kansas City, testified that he saw the plaintiff get on the front end of the car, about 8 feet ahead of where the witness was standing. The witness had himself intended to get on the step, but the plaintiff got on ahead of him, and the witness then turned his attention to the rear end of the car. The witness was not looking at plaintiff when the accident occurred, but immediately went to plaintiff's assistance, and found him lying unconscious on the ground, with his left hand crushed. The witness also found a bruised place on the rear portion of the top of plaintiff's head. This witness testified that passengers were let in at both ends of the car, on that night, at that place; that when the accident occurred the car was moving slowly, preparing to stop. The witness further testified that plaintiff was suffering from concussion of the brain, and that the concussion of the brain rendered plaintiff unconscious; that plaintiff "came to" in about 30 minutes, but did not become rational and fully regain consciousness until the next morning; that the injury to the hand could not have caused the unconsciousness, but that it could have been caused from the bruise on the head. This witness accompanied plaintiff to the hospital, and there aided in amputating the hand. The plaintiff did not sufficiently regain his consciousness to be able to help determine about the amputation of his hand, but the physician in charge decided that it was the necessary thing to do, and it was accordingly done.

Oscar H. Stevens testified that it was crowded around the car; that there was a "bunch" on the front end; that plaintiff was knocked or brushed off, and fell, and was in under the car, "and it looked like he was going to get his head and everything cut off," and the witness grabbed plaintiff by his feet and pulled him out from under the car. The witness testified that several people were trying to get on the front end of the car, including himself. The witness said:

"I couldn't say about seeing the man fall — such a mob there and crowd, and they was all grabbing, I couldn't — some kind of an object, or something, you know, and I went to grab on. I saw him underneath; then I pulled him out. I saw something like it fell off or jumped off. I didn't pay any attention; didn't think anybody was going to get hurt. I saw an object kind of fall down. I saw a car there and they was all scrambling; that made him knock him off or get off, I guess — I suppose. When I took hold of him, he was lying on his back."

After the accident the witness helped carry plaintiff onto the car.

Sam Tranin testified:

"There was quite a mob of people down there waiting for the car. Well, the car came around, kind of swept away around the curve, and I could see — well, just when it was probably about 10 feet away from me, I could see a man holding onto the vestibule, to the rods of the car — of course, I couldn't see whether he was standing on the steps or not, because I didn't see below, I just looked on top of the car. I could see that; I could see him fall loose from there. * * * Then Mr. Stevens started to holler, `That man,' he says, `just fell off of the car and got cut up,' and then Mr. Stevens ran up to pull him out. There was such a mob right around there I couldn't see what he done with him at all."

Witnesses for the defendant narrated the occurrence as follows:

Bessie Rosenthal testified:

"I saw the man as the car was turning the loop. I saw a man hop on the car, and he held there, and when it turned the loop, and got towards me, he went and let go, and he fell off — fell kind of on his side, on his back; and then he rolled over, and threw one hand on the track, and hit my slipper with the other hand. He fell on his back."

This witness further testified that plaintiff was not unconscious before his hand was crushed, but became so afterwards. She gave as a reason for this conclusion that his eyes were open before the injury, but were closed afterwards. She further testified that it was the rear wheel of the front truck that ran over his hand.

Mrs. H. Ankerson testified as follows:

"This man jumped or caught hold of that bar of the car — that handlebar there — and it drug him along. He seemed to slip — I don't know whether he slipped or not, I can't say that; but it drug him along, and just as he got in front of us he fell, and he fell over, and he rolled back again, and just then, why, he threw out his hands, and I says, `Don't throw your hand under the car.' He threw it right under the car then."

Louis Minturn testified that he saw the man jump for the steps as the car came along, and saw him take hold of the handholds; then he saw the plaintiff squat down and let go of the handhold and fall forward on his back. The witness then saw plaintiff roll over and place his hand on the rail under the front trucks, and then roll back on his back; that the car ran 5 or 10 feet and then stopped.

Charles Guth, companion of the witness Minturn, testified as follows:

"I noticed a man jump on the front step and grab the one handhold, and he let loose — well, he was on there just long enough to let loose and fell off kind of back down on his back, and forward, and he rolled over and placed his hand under the wheel of the car just about the time the car was ready to stop."

This witness saw the wheel run over plaintiff's hand, and stated that after this occurred plaintiff "rolled over and threw his left hand in the air, the mangled hand — threw it in the air, on his back. The car was traveling about 3 or 4 miles an hour." On cross-examination the witness testified that plaintiff's shoulders hit the ground first, that the plaintiff "kind of squatted and fell back on his shoulders," and that the injured man was unconscious after the accident.

The testimony on behalf of defendant took a wide range, and much immaterial testimony was introduced without any objection on the part of plaintiff. The plaintiff did not take the witness stand in person, but the defendant offered the deposition of the plaintiff in evidence. In his deposition the plaintiff testified that along in April, 1911, he was solicited by defendant's agent to take out some accident insurance; that he had known the agent since they were boys together in high school, at Kansas City, and that he took out a policy for $5,000; that the agent wanted him to take out a policy for $15,000; that the first policy was to expire on August 1st,...