Neal v. Kansas City Rys. Co.

• Decision Date: 23 March 1921
• Docket Number: No. 21779.,21779.
• Citation: 229 S.W. 215
• Parties: NEAL v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

229 S.W. 215

NEAL v. KANSAS CITY RYS. CO.

No. 21779.

Supreme Court of Missouri, Division No. 2.

March 23, 1921.

Reimittitur Filed March 29, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by P. R. Neal against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed, on condition that plaintiff file remittitur.

Richard J. Higgins, of Kansas City, Kan., and Russell Field and Gabriel & Conkling, all of Kansas City, Mo., for appellant.

Atwood, Wickersham, Hill & Popham, of Kansas City, Mo., for respondent.

WHITE, C.

April 29, 1919, the plaintiff recovered judgment against the defendant in the sum of $15,482, as damages on account of personal injuries. The plaintiff, who lived at Glasgow, Kan., on January 22, 1916, about 8 o'clock in the evening, was a passenger on one of defendant's street cars. He took passage at Twelfth and Grand streets, in Kansas City, intending to go to Twenty-Sixth and Prospect streets. As the car approached his destination he gave the signal to have it stop. The conductor rang the bell and the car came to a stop. The plaintiff went to the front door of the car to get off; he was 55 years of age, a large, heavy man, weighing 260 pounds, and as he started to step off the car it suddenly started forward with a surge or jerk, which threw the plaintiff backward against the side of the car. He fell to the ground, rolled over, and one of the rear wheels of the car ran over his foot, crushing the bones. That is the plaintiff's story of how his injury occurred. It is corroborated in some particulars by several witnesses, two of whom were young women, who swore that they saw the car stop and pass on, and the man lying on the ground; they went to him, and helped him up and to a bench.

The defendant introduced evidence tending to show that the plaintiff had alighted and was clear of the car when it started, and that the car started in the usual smooth and regular manner, with steady increase of speed. There was considerable conflict of evidence as to who picked up the injured man and assisted him to a bench and to a drug store in the neighborhool. Defendant introduced some men witnesses, who swore that they picked him up and assisted him, and that the girls who had testified for the plaintiff had nothing to do with it.

The surgeons endeavored to save a portion of plaintiff's foot. They first amputated some of his toes; afterwards gangrene set in, and his leg was amputated five or six inches above the_ankle. After that he made rapid recovery. The expense of surgeon's bills, hospital bills, and artificial limb were $482.

I. On the 3d day of February, 1919, before the trial, the defendant filed an application for a change of venue. This application set up that on December 11, 1918, the employees of defendant were on a strike, and that for two days the defendant was unable to operate its lines; that on December 13, 1918, it began to operate a few cars, and from the beginning of such operation it met with violence from mobs of strikers and their sympathizers; that the mobs shot into the cars, threw stones and other missiles through the windows, blocked the tracks, greased and soaped the tracks at dangerous curves, so as to cause cars to become unmanageable, and attempted to blow up cars by use of dynamite; that the conditions which ensued on account of such acts of violence brought about a feeling of prejudice against the defendant, such that it could not have a fair trial in Jackson county; that an application was made by the company to the United States District Court, upon which application an injunction was granted by said court to restrain the acts of violence mentioned; that finally the mayor of Kansas City asked the Seventh Regiment, N. G. M., to be called out to protect the property of the company and passengers riding on such cars; that all such circumstances caused much ill feeling against the defendant; that the various labor unions in the city were in sympathy with the strikers, and there was such deep sympathy for them generally as to make it impossible to secure a jury who would impartially try the case in Jackson county. Upon this application the court took evidence, which is set out in full in the record, and comprises nearly 600 pages. After hearing the evidence, the trial court overruled the application, and the trial was had some two months later.

The defendant introduced 11 witnesses, who swore that they had heard many persons discuss the strike, and that most of them expressed such prejudice against the company that the witnesses believed it would be impossible to get a jury that would give the defendant an impartial trial. It was shown that about 2,500 employees of the company were on strike. In explaining how they had gathered the sentiment of the people, the witnesses testified that they had heard them talking on the cars, riding in jitneys, standing on the street corners waiting for cars, etc., and some of the witnesses estimated that about 75 per cent. of the people who talked about it showed prejudice against the company. It was shown that at the time the application was heard, three months after the strike began, the company was operating about 80 per cent. as many cars as were operated before the strike. They had gradually increased their service until it reached that point, although the strike was still on and unsettled. Some of the witnesses testified that there was prejudice against the company for reasons other than connected with the strike. It was criticized because it had increased the fares, and because of the poor service. No sympathetic strike was conducted in the city, but it was stated by some of the witnesses that all the union crafts within the city were more or less affected, because they refused to ride on the cars.

In addition to these witnesses, the defendant introduced 166 affidavits in support of the application, most of which affidavits appeared in the record. All of them were in the same form. The affiant in each case swore:

"That he has talked with and heard a great many people discuss the Kansas City Railways Company and its officers, since the strike began December 11, 1918, and that it is his opinion, based on such conversations, observation, and knowledge, that the Kansas City Railways Company cannot have a fair trial of any of its cases at this time on account of the prejudice existing against said railway company on the part of a large number of persons in this city and county from which juries are regularly drawn each week."

It will be noticed that each of these affidavits merely expresses an opinion, without giving any fact upon which the opinion is based; there is no statement as to what was said in the conversations mentioned, or what was seen in the observations of the affiant, in each case, to give ground for such opinion. Evidence was offered by defendant to show also acts of violence, the use of dynamite, etc., as mentioned in the application.

The plaintiff offered evidence in opposition to the application and produced 17 witnesses from various walks of life, who testified that they had heard people talk about the strike and about the defendant company, in criticism of it and otherwise, and each of them gave it as his opinion, formed from hearing such conversations, that the company could have a fair and impartial trial. Each of such witnesses testified that the great majority of people, judging from their talk, were in sympathy with the company and against the strikers; it was a period when people were tired of strikes; they condemned this particular strike, because they thought the strikers were in the wrong, and the company was doing the best it could under the circumstances. Several of the witnesses estimated the percentage of people whom they heard talk in that respect, placing the proportion of those who favored the company as against the strikers at from 80 to...