McKinley v. Metropolitan St. Ry. Co.

• Decision Date: 05 March 1917
• Docket Number: No. 12304.,12304.
• Citation: 192 S.W. 1052
• Parties: McKINLEY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

192 S.W. 1052

McKINLEY v. METROPOLITAN ST. RY. CO.

No. 12304.

Kansas City Court of Appeals. Missouri.

March 5, 1917.

Appeal from Circuit Court, Jackson County; D. E. Bird, Judge.

"Not to be officially published."

Action by Ben P. McKinley against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Clyde Taylor, Charles A. Stratton, and Charles N. Sadler, all of Kansas City, for appellant. Atwood & Hill, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff was a passenger on one of defendant's electric street cars in Kansas City, and charges that by the negligence of defendant he was thrown from the car and his knee injured. He recovered judgment in the circuit court.

It appears that plaintiff was in a car on Fifth street approaching Washington street, and that at about halfway the block he requested the conductor to stop at the latter street for him to alight, and immediately got up from his seat and went through the rear vestibule or platform and stepped out onto the step, standing thereon with one foot (the other resting on the platform) and holding to a handle or bar. All the while the car was running towards the stopping place on the west side of Washington street. He testified (and he was his only witness save his physician) that the car had been running at pretty good speed, but begun to slow down, and that when yet 25 or 30 feet from the stopping place it was running 5 or 6 miles an hour, when suddenly the motorman released the brake and turned on the power, which caused the car to lurch forward and throw him from the step to the pavement while the car passed on without stopping at the usual place. He testified that his full weight was on the step.

Plaintiff, besides charging negligence, alleged in his petition that the motorman and conductor knew of his position and of his imminent danger, or by proper care could have known it. He further alleged a custom in these words:

That he "was in the exercise of reasonable and ordinary care and skill, and followed out the custom of himself and other passengers in said Kansas City in riding upon and preparing to alight from said car."

We take it that by this language plaintiff was endeavoring to state that it was the custom for passengers desiring to alight to ride on the step. The answer was a general denial and contributory negligence.

Plaintiff asked but one instruction, and that was on the measure of damages. It read that, if the jury "find the issue in this case for the plaintiff then in estimating and determining his damages you shall...