Piehler v. Kansas City Public Service Co.

• Decision Date: 12 April 1948
• Docket Number: 40303
• Parties: Rollin Piehler, a Minor, by His Next Friend, Bertha Schultz, v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

211 S.W.2d 459

357 Mo. 866

Rollin Piehler, a Minor, by His Next Friend, Bertha Schultz, v. Kansas City Public Service Company, a Corporation, Appellant

No. 40303

Supreme Court of Missouri

April 12, 1948

Motion for Rehearing or to Transfer to Banc Overruled May 27, 1948.

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded.

Charles L. Carr, Frank J. Rogers and Cooper, Neel Sutherland & Rogers for appellant.

(1) Plaintiff's testimony as to the manner in which the accident happened is contrary to physical facts and natural law and will not support the verdict. Carner v. St Louis-S. F. Railroad Co., 89 S.W.2d 947, 338 Mo. 257; Dunn v. Alton Railroad Co., 340 Mo. 1037, 104 S.W.2d 311; Daniels v. Kansas City Elevated Ry. Co., 177 Mo.App. 280, 164 S.W. 154; Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160; Sexton v. Met. Street Ry. Co., 245 Mo. 254, 149 S.W. 21. (2) Plaintiff failed to show defendant guilty of any negligence that caused his injury. There was no evidence of probative value that there was an unusual movement of the streetcar. Elliott v. Chicago, M. & St. P. Ry. Co., 236 S.W. 17; Guffey v. Hannibal & St. Joseph Railroad Co., 53 Mo.App. 462; Hawk v. Chicago, B. & Q. Railway Co., 130 Mo.App. 658, 108 S.W. 1119; Hedrick v. Mo. Pac. Ry. Co., 195 Mo. 104, 93 S.W. 268. (3) There was no evidence that the operator knew that the plaintiff had left his seat and was in a position standing by an open window, but the evidence was to the contrary. Schwanenfeldt v. Met. Street Ry. Co., 176 S.W. 1098; Ely v. Southwest Missouri Railroad Co., 141 Mo.App. 708, 125 S.W. 833; Modrell v. Dunham, 187 S.W. 561. (4) The court erred in refusing to grant defendant a new trial on account of the misconduct of juror Prince in failing to disclose on voir dire examination that he had a claim then pending against the defendant. Bass v. Durand, 345 Mo. 870, 136 S.W.2d 988; Gibney v. St. Louis Transit Co., 204 Mo. 704, 103 S.W. 43; Webb v. Missouri-K.-T.R. Co., 342 Mo. 394, 116 S.W.2d 27; Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695; Schierloh v. Brashear Freight Lines, Inc., 148 S.W.2d 747.

Paul C. Sprinkle, F. M. Kennard, Wm. F. Knowles and Sprinkle & Knowles for respondent.

(1) Appellant's motion for judgment after verdict was properly overruled because under the facts and law the respondent made a submissible jury case. Doyle v. Terminal Ry. Co., 31 S.W.2d 1010, 326 Mo. 425; Gately v. St. Louis-S.F. Ry. Co., 56 S.W.2d 54, 332 Mo. 1; Dempsey v. Horton, 84 S.W.2d 621, 337 Mo. 379; Ford v. Railroad Co., 196 S.W.2d 163; Cooley v. Dunham, 195 S.W. 1058, 196 Mo.App. 399; Modrell v. Dunham, 187 S.W. 561; Witters v. Street Ry. Co., 132 S.W. 38, 151 Mo.App. 488; Muldrig v. Wells, 257 S.W. 1060; Keppler v. Wells, 238 S.W. 425; Modrell v. Dunham, supra, l.c. 563; Paul v. Street Ry. Co., 179 S.W. 787; Setzler v. Ry. Co., 127 S.W. 1, 227 Mo. 454; Bales v. Kansas City Pub. Serv. Co., 40 S.W.2d 665, 328 Mo. 171; Moeller v. United Rys. Co., 147 S.W. 1009, 242 Mo. 721. (2) The court did not err in granting a new trial because of misconduct of the juror, because under the circumstances in evidence, the refusal to grant a new trial was discretionary. Lee v. Baltimore Hotel Co., 136 S.W.2d 695, 345 Mo. 458; Plater v. Kansas City, 68 S.W.2d 800, 334 Mo. 842; Naylor v. Smith, 46 S.W.2d 600; Paul v. Dunham, 214 S.W. 263; St. Louis Railroad Co. v. Real Estate Co., 103 S.W. 519, 204 Mo. 565.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

In November 1944 the plaintiff, Rollin Piehler, his brother, Louis, and their friend, Ray Starks, were going horseback riding at the Park Valley Stables near Swope Park. A station wagon from the riding stable was to meet them at the end of the car line. Louis and Ray were twelve years old. Rollin was eleven and weighed eighty-eight pounds. By the time the Swope Park car approached the end of the line the three boys were the only passengers. As the streetcar approaches the eastern end of the line it runs in an easterly direction, veering to the south, and enters a loop. The loop forms a perfect semicircle with a radius of seventy-five feet. The boys told the streetcar operator that they were going horseback riding and that a station wagon was to meet them. It was a warm day and several of the streetcar windows were open. As the streetcar approached the loop the boys saw the station wagon going towards "the zoo" and Louis and Ray jumped out of the streetcar window and ran towards the station wagon. The plaintiff, Rollin, went to the back of the car, got up on the long seat, with his right knee in the seat and his right hand on the window sill and began ringing the buzzer with his left hand. As the car went around the loop it picked up speed, threw the back end of the car around, and Rollin was thrown head first out the open window. He caught and held onto a window sill until the streetcar crossed the eastern portion of the loop when he fell to the ground and the streetcar ran over his left foot.

A jury awarded him $ 12,000 for his injuries and upon this appeal the streetcar company contends that the trial court should have sustained its motion for a directed verdict for the reason that there was no proof of negligence. It is urged that Rollin's testimony and description of the occurrence is so contrary to "natural law," Sir Isaac Newton's principle that "objects in motion continue in motion at the same speed, moving in the same direction until overcome by some other force" that it cannot be accepted by this court. It is urged that there was no proof of negligence because there was no evidence of probative force that there was an unusual movement of the streetcar or that the operator of the streetcar knew that Rollin had left his seat and assumed a position in the open window.

The allegation of the plaintiff's petition was that "suddenly the motorman . . . carelessly and negligently ran said car around the abrupt curve at said loop . . . and in so doing moved said car at such rapid speed as to give an abrupt, extraordinary and unusual jerk, thereby causing plaintiff to be thrown out of said window . . ." As the streetcar approached and came into the loop Rollin said: "It was going slow, and it picked up speed." It was going "About like a man walks fast" and after the other two boys jumped out "It was going a lot faster. About three times as fast." He said that the rear end "jerked (around) really fast" and that was when he went out. As the car went around the loop the motorman said: "The maximum speed I don't believe would have been over five miles an hour." He had cut the power off before the streetcar got into the curve. He denied that there was any sudden increase in speed as he drove around the loop although "we put on a point or two of power (in the curve) to counteract that binding." Another company employee said that when a streetcar was diverted from a straight line there was a tendency to continue in a straight line and "the weight of the car and the momentum of the car has a tendency to carry it on in a straight direction, and in a curve there is more or less pressure against the outer rail." He said that after the car entered the curve there was some centrifugal force to the outside on the wheels and the car. As the car moves around the curve there are two motions "Forward and in the curve line."

It is true in a railroad case that the plaintiff's description of the train's action as "an awful jolt and jar" and "a very hard and unusual jar" was said to convey no meaning and described nothing more than the usual operation of a train. Elliott v. C., M. & St. P Ry. Co., (Mo.) 236 S.W. 17. Nevertheless, in that case, it was held that the plaintiff's descriptive evidence when considered with the conductor's evidence that any jar sufficient to throw a passenger down was unusual made a case for the jury. In Keppler v. Wells, (Mo.) 238 S.W. 425 the plaintiff said "it seemed like the car slackened up, gave another severe jerk," "an awful jerk" and the court held that whether there was an unusual movement and negligence was for the jury. In Bales v. Kansas City Public Service Co., 328 Mo. 171, 40 S.W.2d 665, it was tacitly conceded that a similar movement made a case for the jury. "At precisely what point such violent movements lose their character as incidents reasonably to be expected during the course of travel and assume the status of actionable negligence is a question of fact, to be determined in the light of the surrounding circumstances." 10 Am. Jur., Sec. 1343, p. 214. "It is negligence to cause a streetcar to give a violent or unusual jar, jerk or jolt. . . . Likewise, accelerating the speed of a moving car by a 'violent or unusual jerk' has always been declared actionable negligence . . ." Laible v. Wells, 317 Mo. 141, 145, 146, 296 S.W. 428, 429-430. The rule was applied to a "summer car" going into a curve in Chadwick v. St. Louis Transit Co., 195 Mo. 517, 93 S.W. 798. Under all the circumstances whether the speed of the streetcar was suddenly increased and the rear end of the car was caused to "lurch outward" or "abruptly swerve out with an abrupt and unusual jerk in an unusual manner" so as to constitute negligence was for the jury. Hite v. Metropolitan St. Ry. Co., 130 Mo. 132, 31 S.W. 262; Shafer v. Kansas City Rys. Co., (Mo. App.) 201 S.W. 611; Witters v. Metropolitan St. Ry. Co., 151 Mo.App. 488, 132 S.W. 38; 10 Am. Jur., Secs. 1343-1347. The operator knew that Rollin or one of the boys was on the streetcar because someone was ringing the buzzer. Whether he was aware of Rollin's exact position in the car was not an issue in the case, at least in so far as the plaintiff's making a prima facie case was concerned. Higbee v. Fleming, (Mo. App.) 269 S.W. 673;...