Lowe v. Metropolitan St. Ry. Co.

• Decision Date: 13 June 1910
• Citation: 145 Mo. App. 248,130 S.W. 119
• Parties: LOWE v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

130 S.W. 119

145 Mo. App. 248

LOWE v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 13, 1910.

Rehearing Denied July 9, 1910.

1. STREET RAILROADS (§ 117)—INJURIES TO PERSONS ON TRACKS—QUESTIONS FOR JURY.

In an action against a street railroad for injuries to one who in the nighttime stepped into a hole between defendant's rails, the question of contributory negligence held one for the jury.

2. STREET RAILROADS (§ 86)—INJURIES TO PERSONS ON TRACK—NEGLIGENCE.

It was negligence for a street railroad company not to place signal lights at a point where there was a hole between its rails at a street crossing.

3. DAMAGES (§ 52) — PERSONAL INJURIES — FRIGHT.

Where plaintiff was injured by stepping into a hole between the rails of defendant's street railroad, she was entitled to recover for nervous shock caused by the fear that an approaching car might run over her on account of her inability to arise after she had fallen.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by Sarah A. Lowe against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John H. Lucas, James R. Page, and Chas. N. Sadler, for appellant. John I. Williamson, for respondent.

JOHNSON, J.

While crossing over street railway tracks maintained by defendant on St. John avenue, a public street in Kansas City, plaintiff fell into an unguarded hole and was injured. This action is for damages sustained by her and is founded on negligence of defendant which the petition alleges was the proximate cause of the injury. The answer is a general traverse and a plea of contributory negligence. Plaintiff prevailed in the trial court, where she recovered judgment for $1,000. Defendant contends that the court should have peremptorily instructed the jury to return a verdict in its favor, and our first concern will be the questions arising under this contention.

The injury occurred October 13, 1907, at 7 o'clock in the evening at the intersection of St. John and Brighton avenues. Defendant was operating a double-track street railway on St. John avenue, the direction of which is east and west, and was repairing the tracks preparatory to the paving of the street east of Brighton avenue. Plaintiff, who was 64 years old and weighed 175 pounds, lived in another part of the city, and was returning from a visit to her married daughter, who lived a short distance north of St. John avenue. She had come on a west-bound car which ran on the north track, and, not having to cross the car tracks in going to her daughter's home, had not observed particularly the condition of the street, but knew that repairs were being made. To return, it was necessary for her to take an east-bound car running on the south track. The regular stopping place of such cars was at the southeast corner of the street intersection. Accompanied by her daughter, she walked south on the west side of Brighton avenue to the north line of St. John avenue, where she crossed over to the east side of Brighton. She and her daughter stopped on the northeast corner of the street intersection until an east-bound car appeared, when they separated; the daughter returning home, and plaintiff proceeding to cross St. John avenue at the crossing on the east line of Brighton avenue.

The witnesses do not agree about the condition of the tracks; but there is evidence to the effect that the space between the rails of the north track and the space between the two tracks had been partly filled in, but that in the space between the rails of the south track there was no filling, and that there was a ditch or hole caused, perhaps, by the absence of a tie. There was an arc light on the north side of the street; but plaintiff says it either was not burning at all, or was temporarily poor, as such lights are apt to be. She did not know of the pitfalls ahead, but was picking her way carefully and was paying close attention to where she was going. We give the following extracts from her testimony: "I started to cross the track, and didn't know it was in the condition it was in. I got across the first one all right, and then got down into the other one, and I was going very carefully. I am always careful because I am not very spry. The way I remember the track, it was dug up, loose dirt, and little piles of loose dirt and then little hollows; and that is the way I remember when I got in there. And then when I fell I went into something. I went into a hole I am sure, for I was thrown down and thrown hard. Q. When you refer to some loose dirt, was that between the tracks? A. Yes, sir; between the tracks. Q. Was that the north or south track? A. The north track was partly filled up, and the other one had none in it. Q. The hole was between the south tracks? A. Yes, sir. Q. You say you fell there. Just tell the jury how you came to fall? A. I was just going across there as carefully as I could. I never do try to go fast or run. I never do run for a car. And finally I just stepped just like right down there (indicating), and I think further than that, and just fell. Q. (By the Court): What do you mean, that you stepped into a depression there, or not? A. Yes, sir; some place they had taken a tie out or something; I don't know what it was. Q. (By Mr. Williamson): And then you fell? A. Yes, sir; and then I fell. Q. Then what? A. I stayed there; I could not get up. * * * Q. Now the entire street on both sides of the track, clear from where you got onto the car, up to where you got off, they had been preparing it for paving, hadn't they? A. Yes, sir. Q. You could see that as you came up in the afternoon? A. I could have seen it if I had looked, but I was on the north side of the car and looking out of the window on that side, and got right out of the car and walked right to the house. Q. But, looking out on the north side you could see that the dirt had been taken out and ballast put in; they were preparing for the paving on the north side, weren't they? A. I didn't see anything. They were preparing to pave both tracks, but I didn't see anything there to call my attention, to it. * * * A. Don't you remember I said I was going along carefully, and all at once I stepped and went down, and I thought I must get out before the car came, and that was the last I knew; I knew I went down there. Q. Why were you going carefully? A. Because the street was rough, and I got into a place I knew I had to be careful,...