Lehnick v. Metropolitan Street Railway Co.
| Decision Date | 04 June 1906 |
| Citation | 94 S.W. 996,118 Mo.App. 611 |
| Parties | EMIL LEHNICK, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
John H Lucas and Chas. A. Loomis for appellant.
(1) The testimony of the plaintiff did not show that the jerk of the car was an extraordinary and unusual one, attributable to a defect in the track, an imperfection in the car or apparatus or to a dangerous rate of speed or to an unskillful handling of the car by the gripman, and the court should have directed a verdict for the defendant. Bartley v. Railroad, 148 Mo. 141; Saxton v. Railroad, 98 Mo.App. 494; Pryor v. Railroad, 85 Mo.App. 378. (2) The verdict of the jury is so palpably against the great weight of the evidence, and substantially all of the evidence in the case as to raise the presumption that it was the result of passion and prejudice and should not be permitted by the court to stand. Zurretts v. Greenwell, 92 Mo. 120; Chouquette v. Railroad, 152 Mo. 257; Zoye v Trawich, 94 Mo.App. 307; Cooper v. Railroad, 94 Mo.App. 417; Meier v. Railroad, 81 Mo.App. 410; Kennedy v. Transit Co., 103 Mo. 1.
T. J. Madden and Bird & Pope for respondent.
(1) The plaintiff made a case for the jury and the peremptory instruction requested by the defendant was properly refused. (2) But a reading of the record will at once show that the plaintiff clearly proved that he was thrown off of the car by one of those unusual, extraordinary and unnecessary jerks that by its mere happening speaks of the negligence of the defendant. Hite v. Railroad, 130 Mo. 138; Bartley v. Railroad, 148 Mo. 140; Dougherty v. Railroad, 81 Mo. 325; Dorsey v. Railroad, 83 Mo.App. 528, 543; Lynn v. Railroad, 103 Cal. 7; 5 Am. and Eng. Ency. Law (2 Ed.), 625; Magrane v. Railroad, Mo. , 81 S.W. 1158; Clark v. Railroad, 127 Mo. 197; Wilkerson v. Railroad, 26 Mo.App. 144; Dimmit v. Railroad, 40 Mo.App. 655; Gannon v. Gas Light Co., 145 Mo. 502; Norton v. Railroad, 40 Mo.App. 645; Minster v. Railroad, 53 Mo.App. 276; Hunt v. Railroad, 14 Mo.App. 160; 2 Thomp., Trials, sec. 1692.
The plaintiff for his cause of action alleges: "That on or about December 13, 1901, at 6:41 a. m., he boarded, as a passenger, one of defendant's cable cars going west at Twelfth and Main streets; that the travel on said line at that hour of the day was always heavy, which was a fact well known to defendant; and that defendant carelessly and negligently, and in disregard of its duty to properly provide for the travel on its said line, was, at and about said time, operating such few trains over its said line that each of its trains and the platforms thereof were greatly overcrowded, and plaintiff was compelled to take passage . . . on a greatly overcrowded . . . train of defendant, and was compelled to stand on the platform of said train . . . as its overcrowded condition prevented him from taking a seat inside the car; that when said train had gone about one hundred feet it gave a sudden jerk of unusual and extraordinary violence, and plaintiff, who was on the platform of said train, was by reason of said jerk and the crowding condition upon him of other passengers, thrown backwards from said car, striking the ground or pavement," whereby he was greatly injured. The answer is a general denial and plea of contributory negligence.
The cable car in question was being operated west along Twelfth street. After passing over Main street it stopped to let off and take on passengers. Plaintiff stated that he went aboard at that point but was unable to get inside the car by reason of its overcrowded condition; that he took a position on the platform of the front car, which was also overcrowded; and that he was standing with his back against the car holding with his left hand to a bar, when the car gave a jerk which caused other passengers to fall against him, and he was thereby knocked off onto the street and injured. From Main street west there is an upward grade. Plaintiff stated that the jerk which caused him to be knocked off the car was of great violence and was unusual. One other witness, Carrie Gebhart, testified that the jerk was of great violence and unusual, and such as she had never observed before on the cable cars. Other witnesses, who were passengers on the platform at the time, were introduced by defendant and stated that the jerk was not unusual. George Ham, who had been a gripman on defendant's cable cars, explained that jerks were unavoidable in the operation of said cars, owing to the fact that they could not be operated with taut cables, but must be operated with the cable in a loose condition; that the jerks mentioned were the result of the cars, after starting from a given point, taking up the slack in the cable; and that after the grip which attached the car to the cable is applied by the operator the speed of the car is greater than that of the cable, and that in adjusting itself to the speed of the cable, there being a slack in the latter, the former is caused to lurch, which produces the jerk. He stated that severe and unusual jerks could be avoided by the gripman loosening the grip on the car until the slack in the cable was taken up. Besides the passengers on the platform, defendant's operators testified that there was no unusual jerk at the time, and such as occurred was unavoidable. Five witnesses who lived in the city, and who were on the platform, testified that plaintiff was knocked or thrown from the platform. Their testimony is to the effect that he was trying to get upon the platform while the car was in motion when he fell. One of them stated that plaintiff attempted to jump upon the platform and in doing so fell off, and that he (witness) attempted to reach him with his hand to get him on the platform but he was unable to do so.
The plaintiff's injury occurred at about 6:40 a. m. It was shown that about that hour, and the corresponding hour in the afternoon of each day, the travel over defendant's said line of cable road was heavy and that the cars were greatly crowded. The testimony of the witnesses varies slightly as to the usual length of time between the passing of the different cars at the time of day mentioned. Some stated that it was from four to five minutes; but according to Carter, the superintendent, the schedule time was two and one-half minutes.
The finding and judgment were for the plaintiff and the defendant appealed.
The plaintiff alone testified that he was a passenger on the car in question and that he was knocked off by persons falling against him as the result of a violent and unusual jerk of the car. He, however, contends that he is supported by the evidence of the gripman, who testified that when he started his train there were no passengers on the sidewalk or on the street there ready to get on the car, and he...
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