Peck v. Springfield Traction Co.
| Citation | 110 S.W. 659,131 Mo.App. 134 |
| Parties | MARY PECK, Respondent, v. THE SPRINGFIELD TRACTION COMPANY, Appellant |
| Decision Date | 04 May 1908 |
| Court | Court of Appeals of Kansas |
Appeal from Polk Circuit Court.--Hon. Argus Cox, Judge.
AFFIRMED.
Judgment affirmed.
Skinker Tatlow and J. B. Delaney for appellant.
(1) The court erred in permitting counsel for plaintiff to state to the jury in his opening statement an alleged conversation between plaintiff and the conductor of defendant. The evidence was not a part of the res gestae. Objections by defense were specific, yet the court permitted a detailed statement of incompetent and highly prejudicial testimony. A few of the Missouri authorities will suffice: Rogers v McCune, 19 Mo. 558; Adams v. Railroad, 74 Mo 553; Aldridge v. Midland Co., 78 Mo. 559; Devlin v. Railroad, 87 Mo. 545; Barker v. Railroad, 126 Mo. 143; Reuschenberg v. Railroad, 161 Mo. 70; Koenig v. Railway, 173 Mo. 698; Redmond v. Railroad, 185 Mo. 1; Wojtylak v. Coal Co., 188 Mo. 260; Frye v. Railway, 200 Mo. 405; Krueger v. Railroad, 84 Mo.App. 358; Senn v. Railroad, 108 Mo. 152; Bevis v. Railway, 26 Mo.App. 19; Gotwald v. Transit Co., 102 Mo.App. 492; Lee v. Railroad, 112 Mo.App. 410; Harper v. Tel. Co., 92 Mo.App. 304; Fowler v. Loan Co., 86 Mo.App. 103; Insurance Co. v. Fillingham, 84 Mo. 534. (2) The error complained of under point I was repeated during progress of the trial. Over specific objections, the court permitted plaintiff to detail an alleged conversation between plaintiff and the conductor. This was no part of the res gestae. Adams v. Railway, 74 Mo. 553; Barker v. Railway, 126 Mo. 143; Koenig v. Railway, 173 Mo. 698; Reuschenberg v. Railway, 161 Mo. 70; Redmon v. Railway, 185 Mo. 1; Senn v. Railway, 108 Mo. 142. (3) This error was not cured by the subsequent exclusion of the same from consideration of jury. (4) The remarks of counsel for plaintiff on final argument, referring to the payment of just fees to Petrie, and referring to testimony of Mr. Delaney, counsel for defendant, who was compelled to become a witness to explain the transaction were unwarranted and reprehensible. Besides it was improper and unfair, under cover of an attack on Mr. Delaney, to inject the poverty of plaintiff into this case. (5) The declaration of the court when counsel for plaintiff was indulging such observations were too mild to cure the wrong done defendant. It carried no rebuke or reprimand. Killoren v. Dunn, 68 Mo.App. 212; Falhman v. Tumilty, 34 Mo.App. 236; Cullar v. Railroad, 84 Mo.App. 340; Leu v. Transit Co., 106 Mo.App. 329; State v. Furgerson, 152 Mo. 92; Rice v. Sally, 176 Mo. 148; Mahner v. Linck, 70 Mo.App. 280; Ritter v. First National, 87 Mo. 574; Gibson v. Ziebig, 24 Mo.App. 65; Nichols & Shepherd Co. v. Metzger, 43 Mo.App. 607; Marble v. Walters, 19 Mo.App. 134; Koch v. Hebel, 32 Mo.App. 103; Prewitt v. Eddy, 115 Mo. 306; Haynes v. Trenton, 108 Mo. 123; Evans v. Trenton, 112 Mo. 390; Smith v. Tel. Co., 55 Mo.App. 626; McDonald v. Cash, 45 Mo.App. 66; State v. Lee, 66 Mo. 165; State v. Ferguson, 152 Mo. 92. (6) The damages awarded are excessive and in the light of the evidence adduced shocks the moral sensibilities. Not one dollar is shown to have been expended for medical treatment. Not one dollar is claimed for loss of time or for loss of wages. Minter v. Bradstreet Co., 174 Mo. 444; Rice v. Railroad, 101 Mo.App. 459; Longan v. Weltmer, 180 Mo. 322; Broyhill v. Norton, 175 Mo. 190; Ruth v. Transit Co., 98 Mo.App. 1; Grayson v. Transit Co., 100 Mo.App. 60; Newcomb v. Railroad, 182 Mo. 687; Markey v. Railroad, 185 Mo. 348; Luckel v. Bldg. Co., 177 Mo. 608; Chitty v. Railroad, 166 Mo. 435. This conversation went to the very issue and is so material that a withdrawal will not cure. Cobb v. Griffith, 12 Mo.App. 130; Meyer v. Lewis, 43 Mo.App. 417; Stephens v. Railroad, 96 Mo. 207; Asbury v. Hicklin, 181 Mo. 658; Wojtylak v. Coal Co., 188 Mo. 260.
O. T. Hamlin and Rechow & Pufahl for respondent.
(1) It is negligence to start a car while passengers are alighting. Street railways are common carriers and must employ the highest degree of care towards passengers and hold the car stationary while they are alighting. Nelson v. Railway, 113 Mo.App. 702; Grace v. Railway, 156 Mo. 295; Dougherty v. Railroad, 81 Mo. 325; Becker v. Real Estate Co., 174 Mo. 246; Culler v. Railway, 84 Mo.App. 340; Barth v. Railway, 142 Mo. 536; Fillingham v. Transit Co., 102 Mo.App. 573; Railroad v. Tobbinger, 147 U.S. 571, L. E. Book 37, page 284; Railroad v. Smith, 90 Ala. 60; Highland Ave. & B. R. Co. v. Burt, 92 Ala. 291; Anderson v. Railway, 12 Ind.App. 194; Crump v. Davis, 33 Ind.App. 88; Electric v. Cusic, 60 Kan. 590; Asbury v. Railway, 125 N.C. 568; Railway v. Shaw, 110 Tenn. 467. (2) The conversation between the plaintiff and the conductor was a part of the res gestae and should not have been withdrawn from the jury; but as it was, defendant cannot complain. Leahey v. Railway, 97 Mo. 165; Bergeman v. Railway, 104 Mo. l. c. 86; Barker v. Railway, 126 Mo. 140; Stevens v. Walpole, 76 Mo.App. 220; Railway v. Coyle, 55 Pa. 402; Koeter v. Railway, 36 N.Y.S. R. 611; Railway v. Holland, 122 Ill. 461; Hooker v. Railway, 76 Wis. 542; Hermes v. Railway, 80 Wis. 590. (3) But if the court should conclude that the evidence should not have been admitted, then any such possible error was caused by the withdrawal of the same from the consideration of the jury by instruction. Harrison v. Kansas City Electric Co., 195 Mo. 634; Anderson v. Railway, 161 Mo. 420; O'Mellia v. Railway, 115 Mo. 221; McGinnis v. Loring, 126 Mo. 410; Sidekum v. Railway, 93 Mo. 400; Slavinow v. Insurance Co., 43 Mo.App. 517; Buckman v. Railway, 100 Mo.App. 30; Fowles v. Bebee, 59 Mo.App. 401. (4) Where there is substantial evidence to sustain the verdict it will not be disturbed by the appellate court. Fullerton v. Carpenter, 97 Mo.App. 197; Everman v. Eggers, 106 Mo.App. 732; Veale v. Green, 105 Mo.App. 182; Dodd v. Guiseffi, 100 Mo.App. 311; Hunt v. Ancient Order of Pyramids, 105 Mo.App. 41; Woody v. Railway, 104 Mo.App. 678; Weller v. Wagner, 181 Mo. 551; Vivian v. Robertson, 176 Mo. 219. (5) The verdict is not excessive. This court will interfere with the jury's findings only in extreme cases. Brown v. Railway, 99 Mo. 319; Hannefar v. Kansas City, 103 Mo. 183; Fullerton v. Fordyce, 144 Mo. 534; Rodney v. Railway Co., 127 Mo. 691; Williams v. Railway, 123 Mo. 586; Hollenbeck v. Railway, 141 Mo. 112; Honeycutt v. Railway, 40 Mo.App. 679; Goodloe v. Railway, 12 Mo.App. 194; Winn v. Railway, 121 Mo.App. 629; Heyde v. Transit Co., 102 Mo.App. 537; Batten v. Transit Co., 102 Mo.App. 285; Norton v. Kramer, 180 Mo. 536; Henderson v. Kansas City, 177 Mo. 477; Maguire v. Transit Co., 103 Mo.App. 459.
--The plaintiff received personal injuries while a passenger on one of defendant's street cars in Springfield, which she charged to defendant's negligence, and brought this action for damages. The cause was taken to Polk county by change of venue, where plaintiff had judgment. It appears that there were two cars, the rear one called a trailer. The evidence in behalf of the plaintiff, which, as the verdict was in her favor, we must accept as true, tended to show that plaintiff boarded the rear car safely and that upon approaching where she desired to alight she gave a signal to stop and that the car was stopped. But before she had reasonable time to get off, and while on the step of the car in the act of alighting, the car was suddenly started with a violent jerk, throwing her onto the street and inflicting the severe injuries of which she complains.
The judgment is attacked not directly on the ground that there is no evidence to sustain it, but that it is so excessive as to show prejudice and a lack of due consideration of defendant's rights on the part of the jury. We have gone over the record in connection with the arguments of defendant's counsel and while we can well see how the several reasons assigned for discrediting plaintiff's case could have influenced the jury to return either a verdict for defendant outright or a much less amount for the plaintiff, yet they did not have that influence and we find ourselves without authority to interfere. Certain it is, that if the evidence in plaintiff's behalf was believed, a case was made for her. Whether such evidence should be credited is a question beyond our province and we leave it, as the law requires we should, with the jury.
The instructions offered by defendant were all refused. We have just disposed of those which amounted to a demurrer to the evidence. The others it seems were not satisfactory to the court and of its own motion several were given which fully and fairly presented every phase of defense open to the defendant on the record. Instruction numbered 4, as offered by defendant directed the jury that even if it was believed that plaintiff gave the signal to stop and that the motorman heard it, and began to stop the car, yet if it was further believed that before the car came to a full stop plaintiff attempted to alight and by reason of such attempt was injured, she could not recover, even though without coming to a stop its speed was increased suddenly. The court added to this the qualification "unless the conductor knew she was attempting to alight and signalled the motorman to start and the start was made with a jerk which caused plaintiff to fall." It seems to be clear that although a passenger may be improperly engaged in the act of alighting from a street car before it has come to a stop, yet it is culpable negligence in the conductor, knowing what the passenger was doing, to cause the car to be suddenly started forward with such suddenness and force as to throw him to the ground.
When plaintiff fell to...
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