Nelson v. Metropolitan Street Railway Company

• Decision Date: 26 June 1905
• Parties: CLARE NELSON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

88 S.W. 1119

113 Mo.App. 702

CLARE NELSON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 26, 1905

Appeal from Jackson Circuit Court.--Hon. J. McD. Trimble, Special Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas for appellant.

(1) The evidence wholly failed to sustain the allegations of the petition. (a) The knowledge of the peril of the plaintiff, on the part of the employees of the company. Spiro v Transit Co., 102 Mo.App. 261; Hesselbach v. St Louis, 179 Mo. 524; Breeden v. Mining Co., 103 Mo.App. 179; Worthington v. Railway, 72 Mo.App. 162. (b) The starting of the trains with a sudden and unusual jerk by the gripman in charge of the train. Bartley v. Railway, 148 Mo. 139, 140; Raming v. Railway, 157 Mo. 506. (2) The giving of instructions as asked by the plaintiff. Instruction numbered 1: (a) Unsupported by evidence. Wyatt v. Railway, 62 Mo. 408; Hanheide v. Transit Co., 104 Mo.App. 328; (b) Enlarges the issues. Fink v. Phelps, 30 Mo.App. 435; Waddingham v. Hulett, 92 Mo. 528; George v. Railway, 40 Mo.App. 447; Crews v. Lackland, 67 Mo. 621 and 622; Barr v. Kansas City, 105 Mo. 559. (c) Is misleading. Mateer v. Railway, 105 Mo. 353; Hewitt v. Steele, 118 Mo. 463; Mead v. Brotherton, 30 Mo. 201. Instruction numbered 2: (a) Ignores the issues tendered by the pleadings. (b) An unrestrained grant to render such judgment as in the opinion of the jury would be proper. Schant v. Railway, 106 Mo. 93; Hanes v. Stock Yards, 103 Mo. 60.

Meservey, Pierce & German for respondent.

(1) The trial court committed no error in submitting the case to the jury. Jackson v. Railway, 118 Mo. 199; Luckel v. Bldg. Co., 177 Mo. 631; Barth v. Railway, 142 Mo. 550; Dougherty v. Railroad, 81 Mo. 330; Cullar v. Railway, 84 Mo.App. 340; Duffy v. Transit Co., 104 Mo.App. 235; Grace v. Railroad, 156 Mo. 295; Fillingham v. Transit Co., 102 Mo.App. 573; Weber v. Railway, 100 Mo. 203; Railway v. Smith, 90 Ala. 60, 8 So. 86; Conway v. Railway, 46 La. Ann. 1430, 16 So. 362; Patterson v. Railway & Bridge Co., 90 Ia. 247, 57 N.W. 880; Anderson v. Railway, 12 Ind.App. 194, 38 N.E. 1109; Becker v. R. E. & B. Co., 174 Mo. 250, 251; Nellis on Street Railroad Accident Law (1904), page 91. (2) The trial court committed no error in giving to the jury plaintiff's instruction numbered 1. Nellis on Street Railway Accident Law (1904), page 91; Jackson v. Railway, supra; Duffy v. Transit Co., supra. (3) The court did not err in instructing the jury on the measure of damages. Chilton v. St. Joseph, 143 Mo. 199; Young v. Webb City, 150 Mo. 333; Smiley v. Railway, 160 Mo. 629; Trust Co. v. Murmann, 90 Mo.App. 555; Hickey v. Welch, 91 Mo.App. 4; Batten v. Transit Co., 102 Mo.App. 285.

OPINION

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 one thousand dollars and the case is here upon defendant's appeal. The error assigned all relate to the action of the trial court in refusing to sustain a demurrer to the evidence and in giving of instructions. First, it is said plaintiff failed to sustain by proof the cause of action pleaded in her petition. The petition charges:

"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, Missouri, 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 employees 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 employees 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 employees 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 employees 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 west-bound 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 gripcar was attached to the front end of the train to assist it up hill 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 signalled 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 claimed by defendant are unsustained by any evidence, are, that the conductor had actual knowledge of plaintiff's position when he signalled the gripman to start, and negligence in the manner in which the train was set in motion by the gripman. There is substantial evidence in the record that the train started with an extraordinary jerk; and while it must be conceded that plaintiff's witnesses all say that the conductor did not look in the direction of plaintiff, and consequently had no knowledge of her situation, the conductor, himself, said: "After getting the signal from the depot I went toward the car, boarded the front platform of the coach, looked to see if everything was clear; then gave the gripman two bells to go ahead; as the train started off and had gone perhaps six or eight feet a woman stepped off the rear platform and fell." From this statement it appears the conductor must have seen plaintiff; but as the instructions given on her behalf are criticized for failing to require the jury to find these facts, we will consider the questions of law arising from defendant's hypothesis that neither of them is supported by proof.

A plaintiff will not be permitted to declare upon one cause of action and recover upon another. When acts of negligence, fundamental to the right asserted, are specifically alleged, they must be proven as alleged. [Waldhier v. Railroad, 71 Mo. 514; Ely v. Railroad, 77 Mo. 34; McManamee v. Railway, 135 Mo. 440.] But this well settled rule is in its application restricted by statute to predicative facts without proof of which the cause of action pleaded cannot be established in its full scope and meaning, and not to facts that, particularizing only, may be eliminated without changing the cause of action. [R. S. 1899, sections 655-798; Waldhier v. Railroad, supra; Leslie v. Railroad, 88 Mo. 50; Ridenhour v. Railroad, 102 Mo. 270.]

Whether or not the facts under consideration are substantive is therefore the question for determination. A fair and reasonable construction of the petition leads to the conclusion that the act of negligence charged was the starting of the...