Ownby v. Kansas City Rys. Co.

• Citation: 228 S.W. 879
• Decision Date: 14 June 1920
• Docket Number: No. 13611.,13611.
• Parties: OWNBY v. KANSAS CITY RYS. Co.
• Court: Missouri Court of Appeals

228 S.W. 879

OWNBY v. KANSAS CITY RYS. Co.

No. 13611.

Manses City Court of Appeals. Missouri.

June 14, 1920.

Rehearing Denied October 7, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

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

R. J. Higgins, of Kansas City, Kan., and Chas. N. Sadler, of Kansas City, Mo., for appellant.

Hale, Flouts, Guthrie, Conrad & Durham, and Clif Langsdale, all of Kansas City, Mo., for respondent.

ELLISON, P.

Plaintiff, while a passenger on one of defendant's street cars, received severe personal injuries through alleged negligent operation of the car. She obtained a verdict for $9,833.33. The trial court required a remittitur of $4,833.33 and judgment was rendered for $5,003, and defendant took an appeal in due course.

It appears that plaintiff is an unmarried woman 25 years of age, and that on the 14th of April, 1917, she accompanied her aunt from her house in Kansas City to the Union Station; the latter, who had been visiting with plaintiff's parents, intending to take a train home. The street car upon which they traveled to the station was a "pay as you enter" kind; the entrance being into a vestibule, thence up a slight incline of the floor to the car proper. A handrail led along or through the vestibule. The aunt entered first and got safely in the car. Plaintiff followed, and as she was walking up the incline, holding to the rail, the car was suddenly moved violently backward and then it was jerked a second time. Plaintiff held to the rail at the first jerk, but at the second her hold broke and she dropped first to her knees and then she: "fell flat." Notwithstanding she realized she was hurt and that she was in such pain that she cried, she proceeded on to the station with her aunt, and after parting with her returned home on a street car and walked two flights of stairs to her room, being assisted on the first flight by the janitor. With the assistance of her mother and sister she went to bed, where she remained for 60 days, and suffered much pain.

There are many points of objection made to plaintiff's case. Some of these would indicate that defendant believes the case is a fraud and that no accident occurred at all. But the principal effort is in the direction of admitting that something really happened to plaintiff, but that the injuries therefrom have been greatly exaggerated.

That plaintiff was thrown to the floor of the car by a sudden and violent starting or jerk and that she was severely hurt is established by a number of reputable witnesses the extent and character of her injuries was testified to by physicians of high character, and this testimony was corroborative of that given by plaintiff herself and others. The verdict of the jury, being based on abundant testimony, must be accepted as determining the facts, and we must affirm the judgment, unless there has been error in the conduct of the trial.

Defendant's first Objection is that the evidence given by plaintiff so contradicts general knowledge and is so opposed to physical facts that no cause of action was made by her evidence. This is based on her statement as to how she fell in connection with the direction of the movement of the car. It is true that a sudden movement of a car in one direction will tend to throw a person standing therein in the opposite direction. But this physical rule is easily disturbed and interfered with by circumstances. Thus in this case plaintiff was clinging to the handrail in an endeavor to prevent the effect of the sudden movement of the car. This necessarily had its influence on the direction of the fall. Plaintiff testified, in answer to an inquiry as to how the matter occurred, that—

"Well, the best I remember, I was getting on the car, and as I got started in the vestibule, I suppose you call it, the car gave a sudden jerk and gave two sudden jerks, and of course it threw me forward and then backward, on rebound, the second time, and the first time I was holding to the right hand, to my right hand as I was going in there was an iron rail, as well as I remember, to the right, the conductor standing to my left to the back—rear of the car, and as I did not fall the first time I had my handhold and did not break loose, but the second time I did; it broke my handhold and I fell to my knees, and then finally— I don't know how to express it, only I just fell flat, sort of in a heap, I should judge you would call it. I don't know of anything else to explain— You want me to go ahead. Well. I was thrown forward— Let me see; I don't know hardly how to describe it; well, I can describe it too, I guess I was thrown forward, and that threw me, the car going backward, it threw me forward and then backward and sort of a rebound, and it gave the two sudden jerks."

Much comment is made by defendant over what is termed contradictions in evidence, which we find not to exist any more than will occur in any case where an account is given by different persons. Defendant asserts "impossibilities" in evidence without reason. For instance, the grade of the track at the place where plaintiff boarded the car was between 3 and 41 per cent., and so counsel say that—

"This car, if it moved backward at all, moved backward up hill; that it did not move according to the estimate of any of the witnesses to exceed three feet from the time it started until it stopped, and it would be a physical impossibility for it to have started and thrown the plaintiff with sufficient force against the rod to have caused a dislocation or subluxation of the sacro-iliac joint."

Again, it is said that the action was brought 14 days after the accident and that after X-ray pictures were taken, and yet mention was made of an "injury to the sacro-iliac joint whatever." Statement of that injury was made by amending the petition. An explanation was given why it was not stated at first. And so an argument more properly for a jury is addressed to us why plaintiff should not recover.

Defendant next objects to plaintiff's instruction No. 1, in these words:

"The petition charges, `Plaintiff further says that after becoming a passenger upon said car as aforesaid, and while proceeding from the entrance and vestibule of the same towards the interior thereof for the purpose of becoming seated there,' etc., while the instruction, as will be seen, is not limited to the allegation of the petition, but says, `was then and there proceeding from the entrance of the vestibule toward the interior of said car for the purpose of being seated.'"

Then follows reference to decisions of the Supreme and appellate courts that an instruction "should be limited to the allegations of the petition and also to the evidence"; counsel saying that

"The evidence showed that the plaintiff, if she was ever injured at all, was in the vestibule and not proceeding from the vestibule into the body of the car."

It is evident that this objection is without substance.

If anything could be more trivial in the way of an objection than that just referred to, it is found in an exception to the trial court's changing instruction No. 6 offered by defendant, which reads as follows:

"The court instructs the jury that...