Latimer v. Metropolitan Street Railway Company

• Decision Date: 24 June 1907
• Parties: ANNA LATIMER et vir, Respondents, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

103 S.W. 1102

126 Mo.App. 70

ANNA LATIMER et vir, Respondents, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 24, 1907

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

John H Lucas and Frank G. Johnson for appellant.

(1) The petition was too general in its allegations of negligence. (2) The trial court erred in permitting plaintiffs to prove the number and ages of their children, the nature and extent of Mrs. Latimer's labors in the household prior to the accident and her inability thereafter to perform such labors. Stephens v. Railroad, 96 Mo. 214; Dayrash v Railroad, 103 Mo. 577; Mahaney v. Railroad, 108 Mo. 200; Williams v. Railroad, 123 Mo. 573; Brown v. Railroad, 23 Mo.App. ___; 15 Encyc. of Law 861. (3) The court erred in instructing the jury in plaintiff's instruction number 1, that if the stop of the train in evidence was "an occurrence not usually happening in the operation of defendant's trains on said line of street railway," the presumption was that such stop was caused by defendant's negligence. Bartley v Railway, 148 Mo. 140; Pryor v. Railway, 85 Mo.App. 379. (4) General Boyle's remarks were improper and prejudicial. (5) The amount of the verdict was grossly excessive.

Boyle, Guthrie & Smith for respondent.

(1) It has been held by the Supreme Court that the bringing of a cable train to a sudden stop creates a presumption of negligence. Logan v. Metropolitan, 183 Mo. 589; Redmon v. Railway, 185 Mo. 10; Minster v. Railway, 53 Mo.App. 285. (2) Appellant contends that the plaintiff's first instruction was erroneous. This instruction was proper. (3) Defendant's fourth contention is as groundless as the others, and, like the second, it is subject to the vice of being a misstatement of the record. (4) Defendant's statement of the facts on which it founds its claim that the verdict in this cause was excessive, is as unfair as its other contentions.

OPINION

BROADDUS, P. J.

The plaintiff, Anna Latimer, sues to recover damages for an injury she received while a passenger on one of defendant's street cars, alleged to have been the result of defendant's negligence. Her husband, Frank Latimer, is merely joined as a nominal party. The cause of action alleged in the petition in substance is, that while plaintiff Anna was a passenger and while the car was moving at a rate of speed of six miles an hour, it was, through the negligence of defendant, and without warning, suddenly stopped, so as to cause a violent and sudden shock by reason of which the plaintiff Anna was suddenly and violently thrown against parts of the car and upon the ground and severely injured.

As the parties do not differ materially in their statements as to the main facts in the case, we have adopted a part of that of plaintiff as a matter of convenience: "On December 28, 1904, the defendant Metropolitan Street Railway Company was operating a cable street railway line on Twelfth street in Kansas City, Missouri. The line runs through the business district on the west and through a residence district on the east. On the downtown or western end of the line the trains are operated by a cable running about seven miles an hour. On the residence or eastern end of the line the trains are operated by a cable running about nine miles an hour. The cables which move these trains run through a conduit below the surface of the ground. The grip runs along in this conduit and the trains are started or stopped by catching or releasing of the hold of the grip on the cable. The division point where these cables enter into and out of the powerhouse is at Twelfth and Charlotte streets. As the eastbound cable train reaches a point near the power house the gripman releases the west cable and permits his train to run by gravity until it reaches a point where he can take hold of the east end cable. If the gripman should negligently fail to release his grip and let go of the cable, and if there were no contrivance to prevent it, the grip would follow the cable until it came in contact with another cable which would result in the sudden stopping of the train and the cutting of such other cable. In order to prevent a part of this double catastrophe a device called a dead-man (being a piece of oak timber about three and a half feet long) is placed below the surface of the ground at a point where it will stop the train before it strikes the other cable, and will prevent cutting such other cable. The gripman opens and closes his grip by means of a long lever provided for that purpose. The grip is held to the cable by a ratchet and notch mechanism which the gripman controls through a brass at the upper or handle end of his grip lever. The latch is lifted out of the notches by pressing the brass against the grip handle which lifts the latch out of the notches. If anything catches between the brass and the grip handle so that the brass cannot be squeezed tightly against the grip it will prevent the removal of the latch from the notches and the grip will retain its hold on the cable.

On December 28, 1904, the plaintiff, Anna Latimer, hereinafter called the plaintiff, was a passenger on one of defendant's Twelfth street cable trains going from downtown to her home in the eastern part of the city. The train was crowded and plaintiff was standing on the front platform of the coach or rear car of the train. When the train approached the division point where the west-end cable goes into the power house, and the east end of the cable comes out of the power house, it was the duty of the gripman to release his hold on the west end cable. For some reason the grip was not released from the cable, and the train going at full speed ran against the dead-man which brought the train to an instantaneous stop. The gripman testified that he failed to let go of the cable because his mitt caught between the brass and the handle of the grip lever and he could not get it out. He admitted, however, that if he had been careful enough to see that the hand would not get in there his mitt would not have caught. The result of the train striking against the dead-man when the car was going at full speed was an instantaneous stopping of the car, which piled up the passengers in the east end of the coach or trailer; the stove pipe fell out and the windows were shattered. The plaintiff was thrown from the platform on which she was standing and fell to the ground in front of the coach. She was carried into the car barn and from there was taken home. Dr. V. W. Gayle was summoned and found the plaintiff suffering intense pain and in a semi-conscious condition. Her elbow was cut in two places, her nose was broken, there was a discoloration under her eye and she complained of intense pain in the back, shoulder and left arm. Dr. Iuen, the defendant's surgeon, assisted Dr. Gayle in treating the patient. They cleaned out her wounds and sewed them up, reduced the fracture of the nasal bone and plastered it up."

The trial resulted in a judgment for plaintiff for four thousand five hundred dollars from which defendant appealed. The defendant assigns the following errors of record, viz.:

"1. The petition did not state facts sufficient to constitute a cause of action.

"2. The trial court erred in permitting plaintiffs to prove the number and ages of their children, the nature and extent of Mrs. Latimer's labors in the household prior to the accident and her inability thereafter to perform said labors.

"3. The trial court erred in giving instruction number 1 for plaintiffs.

"4. General Boyle's remarks to the jury were wrong and prejudicial.

"5. The verdict was excessive."

On defendant's first assignment of error, that the petition does not state a cause of action, defendant's argument is: "A collision imports negligence, and hence an allegation that it was caused by the negligence of defendant is sufficient. But a stop or start or jerk of a cable train does not import negligence, and hence an allegation that such act was done negligently is without force or effect. To make a stop or start or jerk of a cable train negligence, it is essential that such stop, start or jerk should have been...