Miller v. Fleming

• Citation: 259 S.W. 139
• Decision Date: 03 March 1924
• Docket Number: No. 14931.,14931.
• Parties: MILLER v. FLEMING et al.
• Court: Court of Appeal of Missouri (US)

259 S.W. 139

MILLER v. FLEMING et al.

No. 14931.

Kansas City Court of Appeals, Missouri.

March 3, 1924.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

"Not to be officially published."

Action by Lillian Pearl Miller, by Nellie Miller, her next friend, against Fred W. Fleming and Francis M. Wilson, receivers of the Kansas City Railways Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Charles N. Sadler and Louis R. Weiss, both of Kansas City, for appellants.

Battle McCardle, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, who sues herein by her next friend, claims that her left arm was injured by the negligent closing of a street car door upon it as she was in the act of alighting from a west-bound street car at its regular stopping place near the corner of Twelfth and Broadway in Kansas City, Mo.

Plaintiff having obtained in the trial court a verdict and judgment for $5,000, the receivers, who were in charge of the street car system at the time, have appealed.

The evidence introduced in behalf of plaintiff tends to show that the injury was caused about 10:10 a. m. of May 30, 1921; that on that day she lacked 3 months of being 11 years old, and was on the street car, as a passenger, in the company of her mother; that they were seated on a seat lengthwise of the car on the right side, and about four or five feet of the front door of the car on that side; that the conductor had collected of her mother the fares for the two, and, when the car came to a standstill at the above-mentioned stopping place, the motorman opened the door for them to alight; that the door was opened by means of a mechanical device consisting of a lever operated by the motorman, whereby by pulling it with his left hand the door would slide back and the step would at the same time come into place, and then by another pull on the lever in closing the door the latter would slide forward into place, and the step would fold up. The motorman, facing west, operated the lever.

The evidence in plaintiff's behalf tends further to show that, as the car approached the above-mentioned stopping place, the two passengers got up, and, passing close to the motorman, stood at the door until the car came to a stop; that the motorman then opened the door to its full width, and the mother stepped down to the street and turned to face the car and the little girl, taking hold of the latter under the arms to assist her from the car; that the little girl had hold of the iron rod with her left hand, and was just ready to step on the ground, having one foot about half off the step, when the motorman pulled the door shut with a sudden and violent slam, catching the girl's left arm at the elbow, or perhaps an inch above it, between the door jamb and the edge of the door; that when the door struck the girl's elbow it rebounded or came back about six inches, letting the arm out and the girl with a cry fell forward into her mother's arms; that the car did not remain a moment thereafter, the door was closed, and the car went on; that a colored boy on the street saw them, and came out to help the mother with the child, the latter crying and vomiting; that the colored boy was unknown, but he wrote his name and address on a piece of paper and gave it to the mother.

The evidence is further that the girl was taken to a doctor's office, where, after the doctor came, her arm was examined, and found to be black and so swollen that the sleeve had to be cut open to get to it; that thereafter the arm was treated by the physician, and was black with greenish spots on it for a space of about three inches above the elbow and two below it; that the arm was treated every other day, and then two or three times a week, and was placed in splints for six weeks; that for the first 10 days after the injury the arm pained her greatly, causing her to cry day and night; that inflammation in the elbow joint developed, and it became stiff so that it has no movement, and the forearm is carried at a right angle with the rest of the arm and lies across the stomach; that she has very limited use of the arm now, though it was all right and perfectly normal before the injury. There is evidence that the injury is permanent. The rod to which plaintiff was holding with her left hand was an upright iron rod just inside the door.

The colored boy, who worked as a porter in the barber shop opposite the stopping place of the car, testified that he came around the corner to go into the barber shop just in time to see the mother and the little girl between the car line and curb, and coming from the car line, the little girl crying and holding her arm; that he did not see the two get off the car nor see the door shut on her arm, but a west-bound car was moving away, and was a little west of them; that he saw the number of the car Ewa it was car No. 752; that he had never seen the mother or the girl before this time, but he got a piece of paper and wrote down for the mother his name and address, but did not remember whether he wrote the number of the car or not; that when he first saw them the car was moving as if it had just started up, and the two were about at the rear end of the car; that the car was about thirty feet away from him when he saw its number.

Defendants' position is that this is a "blind case," that is, that, if such an accident occurred, the operatives of the car were unaware of it, and defendants had no knowledge of it until after plaintiff had employed her attorney.

Although defendants offered a demurrer to the evidence, and, in briefs and oral argument, contend that the happening of the injury, as plaintiff's evidence states it, is a physical impossibility, yet they do not make the point in the brief that no case was made for the jury, but, in a way, concede that the evidence introduced did make a case.

It is urged however, that error was committed in refusing to allow a witness to testify as an expert motorman whether or not the door, equipped as it was with the mechanical closing device,...