Miller v. Kansas City Rys. Co.

• Citation: 247 S.W. 230
• Decision Date: 29 January 1923
• Docket Number: No. 14404.,14404.
• Parties: MILLER v. KANSAS CITY RYS. CO.
• Court: Court of Appeal of Missouri (US)

247 S.W. 230

MILLER v. KANSAS CITY RYS. CO.

No. 14404.

Kansas City Court of Appeals. Missouri.

January 29, 1923.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially published."

Action by Frieda Miller against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

S. L. Trusty and. Gamble, Trusty & Pugh, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff obtained a verdict and judgment for $5,000 on account of personal injuries alleged to have been sustained through being thrown from a street car by the negligence of the defendant, and the latter has duly appealed.

The petition alleged that—

On January 6, 1919, plaintiff "took passage upon one of defendant's south-bound street cars while it was stopped at the usual stopping place for taking on and discharging passengers, * * * and while she was in the rear vestibule, and before she had time to pay her fare or to take a seat in said car, the agents and servants of the defendant did carelessly and negligently jerk said car with a great and unusual violence, thereby throwing plaintiff out of the vestibule and onto the street, greatly injuring her as follows:

"Cutting and bruising her head, neck, face, shoulders, arms, body, hips, legs, knees and feet; causing a concussion of the brain; a concussion of the lungs, and wrenching and twisting of the bones, muscles, nerves, ligaments and vessels of her back, injuring her nerves and nervous system, injuring her kidneys, lungs, heart and liver, bruising and injuring her pelvic organs; causing plaintiff great physical suffering and mental anguish—all to her damage in the sum of $20,000, for which, with costs, she prays judgment."

The answer was a general denial, followed by a paragraph stating that—

Defendant "further answering says that if plaintiff was injured at the time and place alleged in said petition, her injuries, if any, were the direct result of plaintiff's own carelessness and negligence in attempting to board the street car at the time and place in question."

To this plaintiff filed a reply denying the "new matter set up in defendant's answer."

Plaintiff's evidence supported the charge in her petition, namely, that after she got upon the car and was in the vestibule, but before she could pay her fare or take a seat, the car was started with a jerk of great and unusual violence, whereby she fell or was thrown out upon the pavement.

Defendant's evidence was that plaintiff came from the other side of the car, passed around the rear end, and attempted to get on while it was moving and when it had gone some 8 or 10 feet, and was thereby thrown down. The witnesses on each side were positive and explicit that plaintiff's fall occurred in the respective ways above indicated. That is to say, plaintiff pleaded, and her witnesses testified positively, explicitly, and with no room for mistake, that plaintiff got upon the car while it was standing still and was in the vestibule when she was thrown down and out of the car because of its being started with a powerful and unusual jerk; while, on the other hand, the defendant's witnesses were equally explicit and positive that the car had gone a few feet, was in motion, and plaintiff's feet were on the ground, when she took hold of the rod of the car and was thrown down. There was no room for any middle ground. Either she boarded the standing car and was up in the vestibule when she was thrown...