Modrell v. Dunham

• Decision Date: 12 June 1916
• Docket Number: No. 12049.,12049.
• Citation: 187 S.W. 561
• Parties: MODRELL v. DUNHAM et al.
• Court: Missouri Court of Appeals

187 S.W. 561

MODRELL v. DUNHAM et al.

No. 12049.

Kansas City Court of Appeals. Missouri.

June 12, 1916.

Rehearing Denied July 3, 1916.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by Arena Modrell against Robert J. Dunham and another, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

John H. Lucas, Mont. T. Prewitt, and Charles A. Stratton, all of Kansas City, Mo., for appellants. Justus N. Baird, of Kansas City, Kan., and Lyon & Lyon, of Kansas City, Mo., for respondent.

TRIMBLE, J.

Plaintiff's suit is for damages on account of personal injuries received in a fall from a street car. Her case is based upon the charge that, when the car approached the corner of Thirteenth and Wood streets, where she desired to get off, which was known to the conductor, he having been asked, and having promised, to let her off at that point, the conductor called out the place and gave the motorman the stop signal, and the car slowed down nearly to a stop, and plaintiff, thinking it was about to stop for her to alight, arose from her seat and was standing in the door opening into the rear vestibule when the motorman, instead of stopping the car, negligently started the car forward with a violent jerk and at a rapid rate of speed, throwing plaintiff out of the door and from the car to the pavement, whereby she was greatly injured. Upon the return of a verdict of $2,500 in her favor, she obtained judgment, and defendant appealed, and now insists that the judgment should be reversed and the cause remanded because the court should have sustained a demurrer to the evidence, because the court erred in giving plaintiff's instruction No. 1, and because the verdict is excessive and should have been set aside on account of passion and prejudice of the jury.

It is insisted that the demurrer should have been sustained because there was neither allegation nor proof that the operatives of the car knew of plaintiff's position, but that, on the contrary, the proof shows they did not know she was where she would likely be thrown down by a jerk of the car. The car was going west on Wood street. It was night and very dark. The evidence for plaintiff tends to show that there were no street lights either at Twelfth or Thirteenth. Defendant's evidence is to the effect that there was an arc light at Thirteenth. Plaintiff was a small woman 66 years of age, and was accompanied by a friend, Mrs. Goermar, a young woman, with a baby in her arms. It is conceded that, when the two boarded the car, they told the conductor they wanted to get off at Thirteenth and Wood streets, and the conductor said to them, "All right, ladies; I will see you get off there." The car was an old-style double truck car, having a vestibule with a controller and braking apparatus therein at each end, and was not of the pay as you enter variety. From the ground three steps led to the floor of the rear vestibule, and, in boarding a west-bound car, one would enter the vestibule from the north, facing south, and then turn to the west and enter the door of the car proper, which was north of the center of the car and near its north side. The floor of the car and the doorsill were about 4 inches higher than the floor of the vestibule. Inside of the car, on the north side, was a longitudinal seat some 5 or 6 feet long, extending from a point near the door up to where the short seats began, which were crosswise of the car. The parties differ as to the distance the east end of this seat was from the door, the defendant claiming it was 2 or 2½ feet therefrom, while the plaintiff's evidence is that it was very near the door, and that when one, sitting on the east end of the seat, arose to his feet, he would be right at or very near the door.

The evidence of plaintiff is that the two women entered the car from the rear vestibule and took seats on the longitudinal seat above mentioned, plaintiff being seated on the east end and right next to and in front of the door, and Mrs. Goermar west of and next to her.

Mrs. Goermar testified that the conductor called out Thirteenth street; that when he did this he was in the front end of the car; that when the conductor called out Thirteenth street, she rang the bell "right soon after that. After awhile it slowed up. When the car slowed up, Mrs. Modrell raised up." She then testified that the car gave "an awful jerk"; that when this occurred Mrs. Modrell, the plaintiff, was in the car proper, not in the vestibule, but standing in the doorway of the car; that when the car jerked, plaintiff "fell down on the car. She fell down from the car on pavement." She further testified that the jerk threw her (the witness) against the door, which, of course, being open, was to one side; that, having her baby in her arms, she pushed with her knee against the door, and was not thrown down nor injured.

The conductor testified that, after the car left Twelfth street, he stepped up in the car, gave the motorman the signal to stop at Thirteenth, and called out Thirteenth and Wood streets; that he stepped by the two ladies; and that, counting the baby, there were only six passengers on the car. He says he was standing up at the time the accident happened. "I had been standing up there from the time that I came into the car to tell these ladies to get off until the accident happened." On cross-examination he said that after the car had passed Twelfth street a couple of car lengths, maybe not over a car length, he stepped into the car and called out Thirteenth and Wood; that when he did this he was right in front of the ladies; that the elderly lady was in the seat near the door; that he "stepped forward about a step, and I had my attention turned to something up in the car, and the first thing I knew somebody—they all hollered at once that a woman had fallen off the car."

Plaintiff, testifying for herself, said the conductor was up in the front end of the car, that she was in the car proper and in the doorway when the jerk occurred, and that she was thrown out and down to the pavement. Plaintiff testified that when the car was slowing down it was "pretty close" to Thirteenth and Wood, "about where the car was to stop." Plaintiff lived not far from the corner, and had been acquainted with the usual stopping place for 6 years. The defendant's evidence does not show how far the car was from Thirteenth and Wood when plaintiff fell off, though the conductor must have known precisely where she fell, as he picked her up.

After setting forth the foregoing facts we are in a position to consider the defendant's claim that plaintiff, in order to recover, must allege and prove that the car operatives had knowledge that she had arisen from her seat preparatory to getting off the car, and that, as the evidence shows they did not know this, plaintiff is not entitled to recover.

Of course, if the car operatives had neither knowledge that plaintiff had arisen, nor reason to suppose that plaintiff would arise from her seat and get ready to leave the car, then it would not be negligence to accelerate the speed of the car with such a jerk as would not injure a passenger who was seated, though sufficiently violent to throw one down if she had left the seat and was standing. Consequently, under certain circumstances, it has been frequently held that a plaintiff could not recover without showing such knowledge, or at least a duty to know. Schwanenfeldt v. Metropolitan St. Ry. Co., 176 S. W. 1098; Hays v. Metropolitan St. Ry. Co., 182...