McNally v. Metropolitan St. Ry. Co.

• Decision Date: 13 June 1910
• Parties: McNALLY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

129 S.W. 464

145 Mo. App. 127

McNALLY v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 13, 1910.

Rehearing Denied June 28, 1910.

1. CARRIERS (§ 333) — INJURY TO PASSENGER — CONTRIBUTORY NEGLIGENCE.

Where a conductor on a street car called out the street at which plaintiff, a passenger, intended to alight and the car immediately stopped, she had a right to assume, in the absence of warning to the contrary, that the car had

stopped at such street, she being unacquainted with the neighborhood, and she was not guilty of contributory negligence in attempting to alight, though the car had not, in fact, reached plaintiff's destination.

2. APPEAL AND ERROR (§ 1002) — REVIEW — QUESTIONS OF FACT.

Where the evidence is conflicting, the appellate court must regard as true the evidence of the party in whose favor the verdict was rendered.

3. APPEAL AND ERROR (§ 206) — OBJECTIONS IN TRIAL COURT — RECEPTION OF EVIDENCE.

Where plaintiff in an action for personal injuries by an answer which was not responsive to any question asked stated that she was the mother of six children, and an objection to a subsequent question as to the ages of the children was sustained, a verdict for plaintiff would not be reversed on appeal, where defendant did not object to the unresponsive answer.

4. CARRIERS (§ 321) — INJURY TO PASSENGER — INSTRUCTIONS.

Where the evidence showed that a conductor standing on the back platform of a street car announced a certain street, and on the car stopping plaintiff, a passenger, walked through the car and on to the back platform and attempted to alight, an instruction submitting the hypothesis that the conductor in the exercise of reasonable care could have known that plaintiff was leaving the car, instead of the hypothesis that the conductor actually knew that fact, was not error.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Mary T. McNally against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas, F. G. Johnson, and T. B. Buckner, for appellant. James H. Austin, for respondent.

ELLISON, J.

Plaintiff was a passenger on one of defendant's street cars, and was injured in attempting to alight therefrom. She thereupon instituted this action for damages, and recovered judgment in the trial court.

Plaintiff got on the car at Nineteenth and Troost avenue, Kansas City, Mo., at about 7 o'clock p. m. November 21, 1907, desiring to go south to Twenty-Sixth street, where she intended to get off and visit a sister. She was a stranger to that part of the city, and told the conductor when she got on that she desired to get off at Twenty-Sixth street. Just after the car had passed Twenty-Fifth street, the conductor, who was in the rear vestibule of the car, called out "Twenty-Sixth street," and the car...