Mcmahon v. Kansas City Rys. Co.

• Decision Date: 27 June 1921
• Docket Number: No. 14028.,14028.
• Citation: 233 S.W. 64
• Parties: McMAHON v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

233 S.W. 64

McMAHON v. KANSAS CITY RYS. CO.

No. 14028.

Kansas City Court of Appeals. Missouri.

June 27, 1921.

Rehearing Denied July 1921.

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

"Not to be officially reported."

Action by Elizabeth McMahon against the Kansas City Railways Company. Judgment for the Plaintiff, and defendant appeals. Affirmed.

H. J. Higgins, of Kansas City, Kan., and Chas. N. Sadler and Mont T. Prewitt, both of Kansas City, Mo., for appellant.

C. R. Leslie and Atwood, Wickersham, Hill & Popham, all of Kansas City, Mo., for respondent.

ARNOLD, J.

This is a suit in damages for injuries sustained by plaintiff through alleged negligence of defendant, based upon the following circumstances. On the afternoon of April 21, 1918, plaintiff, a woman 45 years of age, while a passenger on an east-bound street car of defendant, attempted to alight therefrom at the regular stopping place at the intersection of Ninth street and Indiana avenue in Kansas City. While leaving said car at the rear steps thereof, plaintiff took hold of the center rod of the vestibule, having one foot on the step and the other in the act of stepping down, when the car started forward with a jerk, throwing plaintiff around with a violent twist, causing her to lose her equilibrium, and to be thrown against portions of the car, greatly to her injury.

At the time of the injury plaintiff was accompanied by two children, one five and the other seven years of age. When she started to leave the car plaintiff first assisted the smaller child off, using her right hand for this purpose; she then took hold of the center rod with the same hand and started to step down, when the accident occurred as stated. The larger child remained in the vestibule until the, car was again brought to a stop. Plaintiff walked about two blocks to her home, and then was compelled to lie down, suffering from pain in her back, right shoulder, right arm, and the side of her neck. The day following, or the second day, a doctor was called to attend her.

The petition alleges the facts practically as above set out and charges that—

"Defendant negligently and carelessly caused and permitted said car to start forward and to move, whereby plaintiff was thrown around and caused to lose her position on the step of said car, and caused to hang onto the same, for a distance of several feet, and was thrown and caused to fall against portions of said car and other hard surfaces, and by said negligent acts and omissions on the part of the defendant she was injured," etc.

Then follow allegations of specific injuries, including, among others, injury to abdomen, internal regions, affecting kidneys and other organs, injury to back and spine, spinal cord, side, and ribs, head and neck jerked and injured, injury to arms, shoulders and lower limbs

"from all of which she has suffered and will suffer great nervousness, sleeplessness, headaches, dizziness, physical pain, and mental anguish, and her power to work and earn a livelihood has been permanently lessened and impaired."

The petition alleges also expenses for medicines in the sum of $50, and prays damages in the sum of $10,000. The answer was, first, a general denial, and second, a plea of contributory negligence. Plaintiff's reply was in the nature of a general denial. The cause was tried to a jury, and verdict was returned for plaintiff in the sum of $2,000. Motions for new trial and in arrest were filed and overruled, and thereafter an appeal was taken to this court.

Defendant's assignments of error charge, first, that the court erred in giving instruction No. 1 for plaintiff, for the following reasons: (a) The instruction fails to require the jury to find that the motorman or conductor knew that plaintiff was in the act of alighting; (b) that the instruction must be predicated upon the evidence and the pleadings, and not upon the pleadings alone; (c) the instruction fails to define the word "passenger."

[] It is charged in the petition and the instruction required the jury to find—

"that those in charge of the car stopped same at Indiana avenue for the purpose of permitting plaintiff and other passengers to disembark therefrom; that while said car was at rest, she attempted to leave the same, and while she was in the act of so doing, and before defendant had given plaintiff a reasonable opportunity so to do, defendant negligently caused and permitted said car to start forward."

The testimony of plaintiff shows that she pushed the button on the side of the car as a signal that she desired to alight therefrom at Indiana avenue; that the car did stop there; that she and the two children walked to the rear platform, where she proceeded to alight; that one of the children, with plaintiff's assistance, actually had alighted; and that when plaintiff was in the act of stepping down from the car the injury occurred.

We are not impressed with defendant's subdivision "a" as above stated. The cases cited by counsel are not in point on this objection. They are cases where the crew were not advised of intention to disembark at a particular point not a regular stopping place. In one case a father, without the knowledge of the crew, was assisting his daughter to alight, and in another a passenger was attempting to leave the train after it had started. None of the cases cited by appellant apply to the point raised herein. In cases involving the elements of those cited, an instruction covering the entire case and directing a verdict should include and require knowledge on the part of the train crew of the intention of the plaintiff to leave the car. But the difference between those cases and the one at bar lies in this, that this was a regular stop, and the testimony shows that the car actually had stopped for the discharge of passengers, and plaintiff had proceeded to the rear door for the purpose of alighting.

This court has repeatedly held that it is the duty of the conductor, before giving a signal to start, in such a situation as the one presented in this case, to know whether or not...