Nelson v. Metropolitan St. Ry. Co.

• Decision Date: 26 June 1905
• Citation: 113 Mo. App. 702,88 S.W. 1119
• Parties: NELSON v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

88 S.W. 1119

113 Mo. App. 702

NELSON v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 26, 1905.

1. APPEAL — HARMLESS ERROR — VARIANCE.

Where, in an action against a street railroad company for injuries to a passenger, plaintiff alleged that while she was dismounting, and before she had sufficient time to do so safely, the car was negligently started with a sudden jerk and at a rapid rate of speed. Held, that the allegations as to the manner of starting the car were not essential to the cause of action, so that failure to prove them was not cause for reversal, under Rev. St. 1899, §§ 655, 798, providing that no variance shall be deemed material, unless it has actually misled the adverse party, and that, where the cause of action is unproved in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof.

2. CARRIERS — MEASURE OF CARRIER'S DUTY.

Street railways are common carriers, and must employ the highest degree of care to avoid injury to their passengers.

3. SAME — CONTINUANCE OF RELATION.

The relation of carrier and passenger continues until the time the latter leaves the train, so that it is the duty of the carrier, not only to safely carry the passenger, but, when his destination is reached, to keep the train stationary while he is alighting.

4. SAME — ALIGHTING FROM STREET CAR — DUTY OF CONDUCTOR.

A street car conductor is required, in the exercise of due care, to look to see if passengers are in the act of alighting before he starts his car, though the car has been stationary for a reasonable length of time to permit passengers to alight.

5. SAME — INSTRUCTIONS.

In an action against a street railway company for injuries alleged to have been caused by the sudden starting of the car as plaintiff was dismounting therefrom, an instruction predicating plaintiff's right to recover upon proof that, while the car was standing, plaintiff took a position upon the back platform for the purpose of stepping off, and that, while in that position and before she had sufficient time to get off, the defendant's servants suddenly caused the car to be started, did not, when considered with another instruction forbidding a recovery if plaintiff stepped from the car after it started, authorize a finding for plaintiff, notwithstanding the jury might believe that she did not attempt to step from the car until after it had started.

6. DAMAGES — PERSONAL INJURIES — FUTURE SUFFERING.

In an action for personal injuries, plaintiff may recover damages for pain which will be suffered in the future as a result of the injury.

Appeal from Circuit Court, Jackson County; J. McD. Trimble, Special Judge.

Action by Clare Nelson against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Rehearing denied October 2, 1905.

John H. Lucas, for appellant. Meservey, Pierce & German, for respondent.

JOHNSON, J.

Plaintiff was a passenger upon one of defendant's cable trains operated upon the Ninth Street line of its street railway system in Kansas City. She was injured while alighting from the car, and sues to recover damages therefor, alleging that the negligence of defendant was the direct cause of her injury. The answer pleads a general denial and contributory negligence. Plaintiff recovered judgment in the sum of $1,000, and the case is here upon the defendant's appeal. The errors assigned all relate to the action of the trial court in refusing to sustain a demurrer to the evidence and in the giving of instructions.

First, it is said plaintiff failed to sustain by proof the cause of action pleaded in her petition. The petition charges that: "On the 21st day of March, 1903, plaintiff entered one of the cars of defendant company at or near the corner of Grand avenue and Ninth street, in said Kansas City, Mo., for the purpose of taking a trip west as a passenger on one of defendant's cars; that plaintiff's destination was the corner of Ninth and Penn streets, and that, upon the arrival of said car at the corner of Ninth and Penn streets aforesaid, the agents, servants, and employés of defendant in charge of said car stopped the same for the purpose of permitting passengers to alight from said car, and this plaintiff immediately undertook to pass out of said car to the street below; that while plaintiff was in the act of stepping from the platform of said car, and before she had sufficient time to get safely off from the same, the agents, servants, and employés of defendant, managing its said railway and in charge of said car, negligently and carelessly started said car forward with a sudden jerk and at a rapid rate of speed, causing said plaintiff to be thrown with great force and violence off of said car and upon the street below; * * * that said injuries were directly caused by the carelessness and negligence of the agents, servants, and employés of said car in starting it forward with a sudden jerk while plaintiff was in the act of alighting therefrom; that at the time when said plaintiff started out of said car other passengers were preceding her, and by the exercise of ordinary care the agents, servants, and employés of defendant might have known that plaintiff was in a place of danger at the time when said car was started; and plaintiff charges that said defendant actually knew that plaintiff was in a dangerous position at the time when said car was started."

Under the facts disclosed by the evidence it appears that plaintiff boarded a westbound train at Grand avenue; her destination being Penn street. The train consisted of a grip car and coach. Plaintiff seated herself in the coach, near the middle thereof, and paid her fare to the conductor. Before reaching Penn street an additional grip car was attached to the front end of the train to assist it uphill and down a steep incline on the other side thereof to the Union Station, the terminus of the line. Penn street was on the summit of the hill, and all west-bound trains were required to stop there for the purpose of receiving and discharging passengers, and to exchange signals with a station at the foot of the incline before proceeding. A telephone line was the medium of communication, and the instrument at the east end thereof was located on the northwest corner of the intersection of the streets, near the curb line of the sidewalk. It was the duty of the gripman to stop the train at this place, and not to proceed until signaled by the conductor, whose duty it was to go to the box, ring up the other end of the line, and wait until he obtained the proper signal. On arriving at Penn street the train upon which plaintiff was a passenger came to a full stop at its customary place, and plaintiff proceeded to alight from the rear end thereof, the proper place. She was preceded by two other passengers. To this point the facts are undisputed. Plaintiff and her witnesses say that she arose from her seat as the car was slowing, remained standing until it came to a full stop, and then walked behind the other two disembarking passengers to the rear platform, and from there was in the act of putting her foot upon the first step, when the train suddenly started without warning and threw her violently to the street; that her progress from the time the car stopped was continuous and as expeditious as possible. She was carrying some bundles, which prevented her from using the railings and other holds provided. Further, her witnesses say the conductor jumped from the train as it was stopping, went to the signal box, received his signal to go ahead, and, without looking to the rear end of the train, raised his hand, called "All right," and ran to and boarded the train, which started immediately, without warning, when he gave the signal.

The facts alleged, which it is...