McRae v. Metropolitan Street Railway Company

• Decision Date: 03 June 1907
• Parties: CHRISTINA McRAE, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

102 S.W. 1032

125 Mo.App. 562

CHRISTINA McRAE, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 3, 1907

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas, Frank G. Johnson and Ben. F. White for appellant.

(1) Plaintiff utterly failed to show that any injuries she might be suffering from when examined by Dr. Hanawalt were caused by defendant. Unless this was done there can be no recovery this was the principal issue in the case. (2) Instruction numbered one was erroneous in adopting the rule res ipsa loquitur in a case where the accident was to the passenger and not to the car. 6 Thompson on Neg., sec. 7637; Thomas v. Railroad, 148 Pa. 180, 15 L. R. A. 416; Keller v Railroad, 149 Pa. 65; Barnard v. Railroad, 60 Md. 555; Railroad v. State, 71 Md. 599. (3) The petition is fatally defective in not alleging act of negligence, either by way of commission or omission, on the part of defendant. This was a necessary averment.

Boyle, Guthrie & Smith for respondent, filed argument.

OPINION

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had judgment in the sum of one thousand dollars and defendant appealed.

In the afternoon of January 18, 1905, plaintiff while on her way to attend a social function, became a passenger on an electric car in operation by defendant on one of its lines of street railway in Kansas City. It was thawing and the soles of plaintiff's shoes had become wet from water and slush in the streets. As she entered the vestibule, she stepped on a metal plate and received a slight shock from electricity. The conductor who was standing near the rear door then cautioned her to "step high" but, observing no obstacle in the way, she proceeded to enter through the doorway and, in doing so, stepped on a metal plate at the threshold. According to her testimony, she received from this contact an electric shock of great severity. When asked to describe the effect of the shock, she said: "Well my limbs seemed to be of such size I could hardly move them and it ran clear through my whole body. It seemed as if my hair was just tearing out. I grabbed for the side of the door and screamed, and I think it was a conductor who was off duty, on the inside of the car, that grabbed my other arm to keep me from falling. The conductor that was on duty still held my arm and held me and helped me to the first seat I came to." She claims to have suffered intense pain and states that after becoming seated her "limbs kept jerking all the time; I kept them down and rubbed them. . . . They kept jerking upwards-- the cords seemed to draw under my knees and I couldn't straighten them out." She rode to her destination, left the car and walked to the home of her hostess where she remained several hours. The entertainment provided was a game at cards and plaintiff participated in the amusement. Several of the other guests called as witnesses agree that she appeared to be very nervous and to be suffering from pain in her legs. On returning home, her pain and nervous condition appeared to grow worse and she went to bed immediately. At various times during the night, simple remedies were applied to alleviate the pains. The next day, she found herself unable to attend to her household duties on account of the pain which then involved the back and head as well as the legs. On the following day, finding her condition unimproved and realizing her injury was more severe than she had supposed, she walked to the office of her family physician who made an examination and prescribed for her. After this, she returned home where she was confined to her bed for a period of three weeks. Her family physician continued to treat her but without success and in March following, another physician, a nerve specialist, was consulted. The examination made by him disclosed that the sensory nerves in the lower part of her legs were paralyzed, but as the motor nerves were not affected, the power of locomotion was not perceptibly impaired. All of the evidence of plaintiff on the subject tends to show that before the occurrence in question she was an unusually healthy and vigorous matron and that she did all of the housework, including washing for her family. After the occurrence her health was visibly impaired, she suffered much from pain and nervousness and was unable to attend to her household duties. This was her condition at the time her case was tried.

One of the physicians who treated plaintiff and was called by her as a witness testified, on cross-examination, in part as follows: "Q. How would you expect Doctor, that a person in passing into a street car and stepping on to some metal part of the car and receiving a shock thereby and was able to go on and spend an afternoon playing cards and back to her home and able a day or two later to proceed to the office of a physician--would you say, Doctor, that that shock was of any great severity, leaving a person so they could do those things? A. Well, it evidently was not sufficient to incapacitate them for locomotion at once. I don't know what there might be afterwards. There are results sometimes from a shock, a nervous condition may come up, due to any physical shock."

The foregoing statement of facts is collected from the evidence introduced by plaintiff. On the part of defendant, it was conceded in the testimony that the metal plate from which plaintiff claims to have received the severe shock was charged with electricity, and that fact was known to the conductor at the time she entered the car. It is also admitted that she stepped on the plate and received a shock therefrom, but it is claimed that it was mild, and the medical witnesses introduced assert that it could not have produced the injurious effects claimed by her. At the end of the run, the car was put out of service for examination and repairs and the inspection which followed disclosed that mud had collected between one of the wires used in the transmission of power to the machinery and the under side of the car, in a way to afford a good conductor of electricity between the wire and the screws which served to fasten the plate. It was claimed by the expert witnesses of defendant that this was an occurrence which could not be anticipated nor prevented in the exercise of the highest degree of care.

Defendant complains of the action of the court in refusing its request for an instruction in the nature of a demurrer to the evidence, and argues that the case should not have been submitted to the jury for the reason that the evidence most favorable to plaintiff fails to show with reasonable certainty that the physical disorder from which she has continuously suffered since the occurrence in question was the result of the electric shock. The argument is founded on a claim that in the examination of the medical witnesses introduced by plaintiff, no attempt was made to elicit an expert opinion that her condition could have been produced by a shock of the nature described by her. Counsel for plaintiff propounded a hypothetical question to one of her expert witnesses which called for an opinion on this subject, but as the witness had been called out of time, the court sustained an objection made by defendant on the ground that a proper foundation for the question had not been laid, and the witness was excused and not recalled. We find, however, in the testimony of the medical experts, the opinion expressed that the condition of ill health into which it is apparent plaintiff has fallen, is to be attributed to a nervous derangement consequent on a severe shock, and we think that without the aid of expert opinion, a reasonable man of ordinary intelligence could infer, without going into the field of speculation or conjecture, that the appearance, in a strong, healthy person, of symptoms of a severe nervous impairment immediately following the reception by that person of an electric shock of great severity, points to the injury as the producing cause. We readily concede the duty is on plaintiff to show by evidence a...