Moore v. Metropolitan Street Railway Company

• Citation: 176 S.W. 1120,189 Mo.App. 555
• Parties: W. E. MOORE, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, FORD F. HARVEY and ROBERT J. DUNHAM, Receivers, Appellants
• Decision Date: 24 May 1915
• Court: Kansas Court of Appeals

176 S.W. 1120

189 Mo.App. 555

W. E. MOORE, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, FORD F. HARVEY and ROBERT J. DUNHAM, Receivers, Appellants

Court of Appeals of Missouri, Kansas City

May 24, 1915

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED IN PART; REVERSED IN PART.

John H Lucas, Chas. A. Stratton and John C. Bramhall for appellants.

(1) The court erred in refusing to give appellants' instruction in the nature of a demurrer to the evidence at the close of the plaintiff's case; as well as appellants' instruction in the nature of a demurrer at the close of the entire case. Andrews v. Lynch, 27 Mo. 167; Syme v. The Indiana, 28 Mo. 335; Ivory v. Carlin, 20 Mo. 142; Staley Co. v. Wallace, 21 Mo.App. 128; Houck v. Bridwell, 28 Mo.App. 644; Boatmen's Bank v. McMenamy, 35 Mo.App. 198; Paddock v Somes, 102 Mo. 226; Hudson v. Cahoon, 193 Mo 547; Hubbard v. Slavens, 218 Mo. 596; Strauss v Transit Co., 102 Mo.App. 644; Marx v. Watson, 168 Mo. 133; Jackson v. Min. Co., 106 Mo.App. 441, 445; Ball v. Neosho, 109 Mo.App. 683. (2) The court erred in refusing to give appellants' instructions 9, 10, 12 and 13. Joyce v. Railroad, 219 Mo. 344; Flaherty v. Railroad, 207 Mo. 318; Peterson v. Railroad, 111 S.W. 37; Schaefer v. Railroad, 128 Mo. 64; Barth v. Railroad, 142 Mo. 535; Spencer v. Railroad, 111 Mo.App. 653; Peck v. Railroad, 178 Mo. 617; Glass v. Galvin, 80 Mo. 297; 1 Blashfield on Instructions, sec. 90. (3) The verdict is so excessive as to indicate it was the result of passion and prejudice upon the part of the jury, and should not be allowed to stand. Pratt v. Blakey, 5 Mo. 205; Richardson v. Fire Brick Co., 122 Mo.App. 529; Chlanda v. Transit Co., 213 Mo. 264; Van Loon v. Light Co., 160 S.W. 66; McGraw v. O'Neil, 123 Mo.App. 691, 705; Partello v. Railroad, 217 Mo. 645, 661; Baker v. Admrs., 36 Mo. 345; Price v. Evans, 49 Mo. 396; Spohn v. Railroad, 87 Mo. 71, 84; Rigby v. Tr. Co., 153 Mo.App. 335. (4) The court erred in overruling appellants' motion for new trial and in arrest of judgment. Kleiber v. Railroad, 107 Mo. 240; Bischoff v. Railroad, 121 Mo. 216; Debolt v. Railroad, 123 Mo. 496; McPeak v. Railroad, 128 Mo. 617; Ephland v. Railroad, 57 Mo.App. 147; Hall v. Transf. Co., 135 Mo.App. 119. (5) The court erred in the admission of improper testimony offered by the respondent, over the objection of the appellants. Roscoe v. Railroad, 202 Mo. 577; Taylor v. Railroad, 185 Mo. 239; State v. Hyde, 234 Mo. 251-253; Castanie v. Railroad, 249 Mo. 192; Wood v. Railroad, 181 Mo. 433; Longan v. Weltmer, 180 Mo. 322; Taylor v. Railroad, 185 Mo. 239; Torreyson v. Railroad, 246 Mo. 696; DeMaet v. Stor. Co., 231 Mo. 615.

O. E. Robinson and H. H. McCluer for respondent.

OPINION

JOHNSON, J.

Plaintiff jumped from a moving street car on which he was riding as a passenger and sustained injuries which he alleges were caused by negligence in the operation of the car. He sued the Metropolitan Street Railway Company, the owner, and Ford F. Harvey and Robert J. Dunham, the receivers of that company. The petition alleges that the defendant company "at all times herein mentioned, operated and controlled . . . a certain line of street railway in Kansas City known as the Twelfth street line; that the defendants Ford F. Harvey and Robert J. Dunham, are, and were at all the times herein mentioned, receivers of said Metropolitan Street Railway Company, having been appointed as said receivers by the Honorable WILLIAM C. HOOK, Judge of the United States Circuit Court, on July 3, 1911; that they are, and were at all times herein mentioned, duly qualified and acting as such receivers, and as such, had and exercised exclusive management, operation and control of said Metropolitan Street Railway Company; that defendant, Metropolitan Street Railway Company is, and was at all times herein mentioned, a common carrier of passengers for hire."

Further it is alleged that on account of the car being crowded with passengers, plaintiff was compelled "to ride on said car by standing on the lower rear steps of said car and with his hands to hold to the iron rods attached to said car adjacent to the rear entrance thereof; that while the plaintiff was in that position on said car and while in the exercise of due and proper care to avoid being hurt and injured, the defendant company carelessly, wrongfully and negligently caused its said car to be run at a high and dangerous rate of speed along and upon its said tracks and so close to a large ice wagon that the plaintiff became and was in imminent danger of being struck by coming in contact with said wagon, and that to avoid being so struck by said wagon, plaintiff was compelled to and did jump from said car, to the street, and in doing so was hurt, injured and damaged as follows," etc.

No demurrer to the petition was filed by either defendant. The Railway Company's answer is a general denial. In the separate answer of the receivers they admit "that on the 3rd day of June, 1911, they were duly and regularly appointed receivers of the Metropolitan Street Railway Company; and that they are now and ever since said date have been in charge of the property of said Metropolitan Street Railway Company," and answer with a general denial. The jury return a verdict for plaintiff in the sum of $ 1600, judgment was rendered against all of the defendants on the verdict and they appealed.

The injury occurred at eight o'clock in the morning of September 19, 1912, on Twelfth street between Oak and McGee streets in Kansas City. Plaintiff had transferred from a Troost avenue car to a westbound Twelfth street car. The latter was very crowded, passengers were standing in the rear vestibule and on the steps and plaintiff was compelled to stand on the lower step on one foot and to hold to a handhold--a position which caused his body to project beyond the outside line of the car. Plaintiff stood facing the way the car was going and while it was running between Oak and McGee streets, he observed a large ice wagon standing in the street between the track and the curb, which appeared to be too close to the track to permit the safe passage of his body. The car approached and passed the wagon at a speed estimated by the witnesses at twenty miles per hour. Plaintiff states "I realized when I was within twenty feet of the ice wagon that I could not go by, that I could not pass because the ice wagon and the car were too close together and if I had stayed on I realized I would have been knocked off . . . I made an effort to get into the car but it was useless because the car was crowded and there were people there that prevented me from going--getting time to get in the car." Plaintiff jumped to the pavement at a point about twenty feet from the wagon and was propelled by the great momentum he received from the high speed of the car, into a violent collision with the rear end of the wagon. He states "I hit the pavement twice and was thrown into the ice wagon. I struck it with my mouth, head first; I was thrown head first into it."

The pavement between the car track and curb was ten feet wide, the ice wagon was six feet, eight inches wide, and the overhang of the car was two feet; consequently, if the north wheels of the wagon were touching the curb, the space between the passing car and wagon was sixteen inches. A pedestrian who saw the injury testified: "The car seemed . . . packed to its fullest extent, and the people were holding on the outside on the steps as best they could all the way on the outside, there was no room for them to get inside, they were just hanging along the steps wherever they could get a hold. . . . I noticed this young man on the car there just before they got to the ice wagon, standing there . . . and it seemed like he was just in mid-air, just suspended anyhow, say just for a second, and the next second, why, he hit the wagon and was thrown underneath, the next I saw of him he was lying there on the ground unconscious."

A passenger who was standing on the lower step testified: "It (the car) was running pretty fast and there was another fellow beside me, I don't know who he was, was standing kind of behind me, and he says, 'we better squeeze in here,' he says, 'we are going pretty fast,' and I says 'I guess somebody will get hurt,' and about another block further, why, somebody who was standing right in front of me got off, or jumped off and was hit by a wagon, and I squeezed in, and just in time to get clear myself, and I got off at McGee street. There wasn't very much space. I don't know exactly how close it was, but there wasn't very much space. I know I only had a little room when I went by."

Plaintiff was the only passenger who jumped from the car and no one remaining on the step collided with the wagon.

The manager of the railway testified that the receivers were operating the line at the time of the injury, and had been operating it since June 3, 1911. The motorman introduced as a witness by defendants stated that the car was running eight or ten miles per hour when it passed the wagon. Further he said that he was working for the defendant company and did not know the line was in the hands of receivers. Despite the latter statement, we think the fact is conclusively established that the car was being operated by the receivers and not by the company. The answer of the receivers admits and the testimony of the manager proves that fact.

In their argument that the demurrer to the evidence should have been given as to the receivers, on the ground that no cause of action is pleaded or proved against them, counsel for defendants lay stress on the testimony of the motorman and of the conductor that they were employed by the company, but in their subsequent argument on the question...