Morris v. Kansas City Rys. Co.

• Decision Date: 10 May 1920
• Docket Number: No. 13381.,13381.
• Citation: 223 S.W. 784
• Parties: MORRIS v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

223 S.W. 784

MORRIS v. KANSAS CITY RYS. CO.

No. 13381.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

"Not to be officially published."

Action by Fannie Morris against the Kansas .City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and Russell Field and Roscoe P. Conkling, both of Kansas City, Mo., for appellant.

Fyke, Snider & Hume, of Kansas City, Peyton A. Parks, of Clinton, and F. J. Oyler, of Iola, Kan., for respondent.

ELLISON, P. J.

Plaintiff alleges that she was a passenger on one of defendant's street cars, and while attempting to alight therefrom was thrown from it to the street, through the negligence of those in charge of the car.

The evidence in plaintiff's behalf tended to show: That she, in company with her two boys, became a passenger on one of defendant's cars running east and west on Twenty-Fifth street, intending to be carried to McCoy avenue where it crosses Twenty-Fifth street. That as the car approached that avenue each of the boys pushed the signal button, indicating that she and they desired to alight at the avenue. That the motorman began to slacken the speed, and they left their seats and went to the front exit, to be ready to alight when the car should stop. The two boys stepped off while the car was yet in motion. When it stopped plaintiff attempted to get off, but while in the act the car was suddenly started forward with a jerk that threw her down onto the street and severely injured her.

It is insisted that plaintiff's instruction No. 1 is erroneous, in that it failed to submit that McCoy avenue was a regular stopping place. We do not think it was necessary to do so. It is not alleged in the petition that it was. Nor was that mentioned in instructions for either party. That is a burden plaintiff has avoided, and we think she wade a prima facie case without regard to whether the cars usually stopped there. Her case, as we have said, is that on signal to stop there the motorman began to slacken speed, and she with her boys went to the exit with the knowledge of defendant's servants that she intended to alight; that the car stopped, and while she, with the knowledge of the servants, was in the act of alighting, they suddenly started the car forward with a jerk and threw her to the street. In such circumstances, it made no difference to defendant's liability whether it customarily stopped at that avenue or not. Its servants did actually stop there at this particular time to let her off, and, when she was in the act of complying with their leave, they threw her to the pavement. And that theory was, in terms, submitted to the jury in plaintiff's instruction No. 2.

Defendant cites us to Hays v. Street Ry. Co., 182 Mo. App. 393, 170 S. W. 414; s. c. 201 S. W. 566, and Murdock v. Street Ry. Co., 206 S. W. 915. The cases are not applicable. There is no intimation in either of them that the state of facts presented in this case would not make liability against the carrier. In the first case, there was a "safety stop" 80 or 90 feet northeast of the regular stopping place, and the plaintiff attempted to get off at the safety stop. There was no evidence that the car stopped at the safety stop in response to a signal; nor was there any evidence that the conductor knew he was intending to get off at the safety stop. The last case seems not to have any bearing on the question in this case.

But it is said the instruction broadens the issues made by the pleading, in that it is charged in the petition...