McEwen v. Kansas City Public Service Co.
Decision Date | 10 June 1929 |
Citation | 19 S.W.2d 557,225 Mo.App. 194 |
Parties | MARY A. McEWEN, APPELLANT, v. KANSAS CITY PUBLIC SERVICE COMPANY, RESPONDENT |
Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Darius A Brown, Judge.
AFFIRMED.
Judgment affirmed.
Clif Langsdale for appellant.
Charles L. Carr, Virgil Yates and E. M. Tipton for respondent.
Trimble, P. J., absent.
This is an action in damages for personal injury sustained by being struck by a passing automobile while plaintiff was endeavoring to board one of defendant's street cars.
At the time of the alleged injury, January 3, 1926, and prior thereto, the street car line involved was owned by the Kansas City Railways Company, a corporation, and was operated by receivers appointed by the Federal Court. Subsequent to the injury in question the defendant Kansas City Public Service Company, a corporation, obtained ownership, possession and control of the properties of the Kansas City Railways Company, and by contract, agreement, and order of the Federal Court, assumed and agreed to pay certain obligations and liabilities of the said Railways Company, of which the present case is alleged to be one.
The Kansas City Railways Company (and later the defendant herein) owned and operated a system of street railways in Kansas City, Missouri, a part of which was the Prospect Avenue line, a double line of tracks of Prospect avenue, from a point near the southern limits of the city north to Fifteenth street, thence west. At the time in question, the receivers operated cars on the Prospect line with a crew of two men, a motorman and a conductor. As shown by the record, the motorman's position was at the front end of the car where he was in charge of the mechanical operation of the car, while the conductor's position was on the rear platform from whence, by means of signals, the conductor controlled the movements of the car.
Plaintiff with her husband, both aged persons, resided on Twentieth street, about half a block west of Prospect avenue. Leaving their home, on the occasion in question, and her husband went east on Twentieth street to Prospect avenue to board a northbound car. It appears northbound cars are not scheduled to stop at Twentieth street but at a point where Prospect avenue would intersect with Nineteenth street, were the latter cut through. At this last named point defendant and its predecessor maintained a pole carrying a sign notifying the public that cars stopped there for receiving and discharging passengers. Plaintiff and her husband proceeded to the place so designated and waited on the sidewalk for a car which they saw approaching about half a block away, then stepped from the sidewalk to the zone near the northbound track and there awaited the approaching car. The husband signalled the car but for some reason it did not stop at the designated point and ran on a distance of sixty to seventy-five feet, when it came to a stop on a viaduct which spans the tracks of the Kansas City Terminal Railways Company. Thinking the car was not going to stop, plaintiff and her husband started back to the sidewalk on the east side of the street, when they saw the car was stopped as above stated. The rear door of the car then was opened and the conductor stuck his head out and signalled them to come on and thereupon, in a hurried manner, they followed the car on the east track. For the purpose of entering the car and when they were within two to five feet of it, they stepped off the track to the right and were in the line of passing vehicles, when an automobile driven by one W. H. Thompson, coming from the south, struck both plaintiff and her husband, knocked them to the pavement and injured plaintiff, as alleged.
The testimony is not quite clear as to the exact position of plaintiff in relation to the street car at the time she was struck, that is, whether she was even with the entrance to the car, or somewhat in the rear thereof. Plaintiff testified she was thrown by the impact a distance alongside the street car. She was assisted to her feet, placed in Mr. Thompson's car and taken to her home. A physician was called but did not arrive until the next day. After a few days plaintiff was taken to a hospital where an X-ray picture was taken of her left shoulder and arm, disclosing a fracture. While plaintiff was confined in the hospital, W. H. Thompson and plaintiff's husband called upon her and presented for her signature a release which previously had been prepared and signed by plaintiff's husband. She then placed her signature thereto beneath that of her husband. This release appears in evidence and is as follows:
"June 19, 1927."
Thereafter this suit was instituted against defendant. The petition alleges negligence in two respects: First, in failing to bring the street car to a stop at the usual stopping place; second, in not warning plaintiff of the approach of the automobile in time for the collision to have been avoided. The petition is so drawn as to include in both charges, a plea under the humanitarian rule. Damages are sought in the sum of $ 7,500.
The separate amended answer of defendant is, first, a general denial and as affirmative defense, pleads full discharge and release. The reply is a general denial of new matter contained in the answer. The cause was tried to a jury.
At the close of plaintiff's evidence, defendant asked and the court gave an instruction in the nature of a demurrer. Thus instructed the jury returned a verdict...
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