Maier v. Metropolitan St. Ry. Co.

• Decision Date: 19 January 1914
• Parties: MAIER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

162 S.W. 1041

176 Mo. App. 29

MAIER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

January 19, 1914.

1. CARRIERS (§ 318)—PASSENGERS—ACTIONS FOR INJURIES—SUFFICIENCY OF EVIDENCE.

Evidence, in a street car passenger's action for personal injuries by suddenly starting up the car, held to sustain a finding that the car actually stopped just before it was suddenly started up.

2. CARRIERS (§ 315)—INJURY TO PASSENGER —PROOF—VARIANCE.

Where the petition, in a street car passenger's action for personal injuries, alleged as negligence the unusual jerking or sudden starting up of the car without respect to whether it had previously stopped, proof that the car did not actually stop just before the alleged negligent jerk was not a fatal variance.

3. CARRIERS (§ 318)—INJURIES—PASSENGER —SUFFICIENCY OF EVIDENCE.

Evidence, in an action for a street car passenger's death claimed to have resulted from injuries in suddenly starting the car, held to show that death resulted from the injuries as alleged.

4. CARRIERS (§ 316) — PASSENGERS — NEGLIGENCE.

Evidence that decedent was a passenger, and was thrown from her seat by a sudden and unusual jerking of the car, was sufficient to show that it was negligently managed in some way; the burden being upon defendant to show that the jerking of the car was not caused by negligence.

5. TRIAL (§ 253)—PASSENGERS—ACTIONS FOR INJURIES.

Where, in an action for a street car passenger's death from alleged injuries, a physician testified that the injuries received caused her death, and there was evidence that, while decedent had hypostatic pneumonia, it was the natural and direct result of the injury, a requested charge that, if her death was caused by hypostatic pneumonia, the jury must find for defendant was properly refused.

6. CARRIERS (§ 318) — PASSENGERS — ACTION FOR INJURIES—SUFFICIENCY OF EVIDENCE.

Evidence, in an action for a street car passenger's death from injuries claimed to have been caused by a sudden jerking of the car, held to sustain a verdict for plaintiff.

7. DEATH (§ 99)—COMPENSATORY DAMAGES— SUFFICIENCY OF EVIDENCE.

Evidence, in an action for death of a person 81 years old from negligent injuries, held to sustain a verdict for plaintiff for $2,500, which was $500 more than the statutory penalty, not being excessive compensatory damages.

8. APPEAL AND ERROR (§ 761) — BRIEFS — STATEMENT OF POINTS.

The points relied on by appellant should not be hidden by general statements in the brief, or by failure to point out alleged errors in reliance on the appellate court's duty to examine the record and award a new trial if necessary, as required by Rev. St. 1909, § 2083.

9. APPEAL AND ERROR (§ 193) — PRESENTATION BELOW—JURISDICTIONAL DEFECTS.

The failure of a petition to state a cause of action may be raised in any court at any time.

10. DEATH (§ 49)—ACTION BY ADMINISTRATOR.

The petition, in an action by an administratrix for intestate's negligent death, was defective as failing to state a cause of action, where it did not allege that there was no husband, minor children, etc., to whom the right to first bring the action is given by Rev. St. 1909, § 5425.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Bertha Maier, administratrix of the estate of Emma Parker, against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.

John H. Lucas, of Kansas City, for appellant. Henry J. Latshaw, of Kansas City, for respondent.

TRIMBLE, J.

Mrs. Emma Parker, a lady 81 years of age, was a passenger on one of defendant's east-bound Troost avenue cars in Kansas City. She is alleged to have been thrown from her seat by a sudden, unusual, violent and severe starting up or jerk of the car, from which fall she received injuries that brought on her death seven days later. Suit is brought by her administratrix under section 5425, R. S. Mo. 1909. A demurrer to the evidence was offered and overruled. Verdict and judgment were for plaintiff, and defendant has appealed.

It is urged that there is no evidence to sustain the verdict, and the demurrer, therefore, should have been sustained: (1) Because there was a variance between the allegation and the proof; (2) because there was a failure to establish negligence on the part of the motorman.

The objection as to variance contains two branches or divisions, namely: (a) The petition alleges a negligent starting of the car, which necessarily implies that the car had come to a prior stop, and all the proof shows it did not stop; (b) the petition alleges death from negligent injury, while all the proof shows death from hypostatic pneumonia.

A careful reading of the record discloses substantial testimony that the car came to a stop just prior to its alleged negligent starting up or jerking. A plausible reason is given for its stopping in its passage across Walnut street, and while its rear end was yet blocking the Walnut street line; that reason being that a Brooklyn car was just in front of it at the point on Tenth street where the usual stop of the car in question was located. One witness says he knows it stopped, because he attempted to cross the street and was expecting to pass immediately behind the car when it had passed, but that to his surprise it stopped in front of him, thus blocking his further progress for a moment, and then the car started forward with an unusual lunge and jerk. To put it in his language, "The car was standing still, and it gave a lunge and jerk—something awful; something that I never seen before, an unusual jerk." This witness says that when this jerk occurred he "heard some one holler," and as the car passed him, on its way to its stopping place on East Tenth street, he "saw an old white-haired lady lying on the floor of the car, with her head out of the door of the hind vestibule." This was the position all the witnesses say deceased was in when she was thrown down. Whether or not this witness told the truth was for the jury to say. He was in a position where the stopping of the car in Walnut street would more forcibly impress itself on him than on the other witnesses at other points on the sidewalk who had no occasion to notice anything unusual until after the car reached its regular stopping place on Tenth and the deceased was found to have been thrown down. Of all the passengers on the car at the time only one was put on the stand, and she testified for the plaintiff. She was sitting opposite the old lady, and when the jerk came, the old lady was thrown from the seat. This witness also says she herself was thrown to one side, but was saved by her escort catching her. She also says that just before the jerk the car came to a full stop, or nearly so. And while the cross-examination shows that possibly she may have confused the stop of the car on West Tenth before it started across Walnut street with the alleged stop in Walnut street, yet such is not probable, inasmuch as she is talking about the stop just before the jerk when the old lady was thrown down. And the pedestrian who was halted by the stopping of the car, thereby having his attention called both to the stop and subsequent jerk, says at that time he "heard some one holler" and saw the old lady's head in the doorway of the vestibule as the car passed.

But, even if there was no stop of the car in Walnut street just prior to the alleged negligent start or jerk of the car, this would not create a fatal variance between the allegation and proof. The petition was all in one count, and all parts of it can be looked to in order to see what was alleged concerning the start or jerk, even if plaintiff was compelled to elect whether it would rely on the fact that deceased was sitting in her seat or walking about in the car when she was thrown down. When all the allegations of the petition are looked to, it will be seen that what is really relied upon is an unusually severe, sudden, and violent jerk, or start, or starting up, of the car. There is no allegation that the car stopped before this happened, unless a stop is implied by the word "start." But when the whole petition is considered it is readily seen that the negligent act is the unusual jerk or sudden starting up of the car without reference to whether it had previously stopped or not. As said by Judge Ellison in Anderson v. St. Ry. Co., 159 Mo. App. 449, loc. cit. 451, 141 S. W. 461, 462, "Starting up by a sudden jerk does not necessarily mean the car was started from a stop, but may well mean, in connection such as in this instance, a starting in rapid movement from a slow movement." In the case of Peterson v. Railway, 211 Mo. 498, 111 S. W. 37, cited in support of defendant's view, there was an allegation that the car regularly stopped at a certain point, and that while plaintiff was in the act of boarding the car at that point the car started forward. This necessarily was an allegation that the car stopped, but there is no such necessary allegation or inference in the case before us. In addition to this, the defendant, by its instruction No. 4, submitted to the jury the question whether the jerk was that of a...