Pietzuk v. Kansas City Rys. Co.

• Decision Date: 06 June 1921
• Docket Number: No. 21781.,21781.
• Parties: PIETZUK v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

232 S.W. 987

289 Mo. 135

PIETZUK v. KANSAS CITY RYS. CO.

No. 21781.

Supreme Court of Missouri, Division No. 1.

June 6, 1921.

Rehearing Denied July 11, 1921.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Julius Pietzuk against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition plaintiff remit portion of judgment; otherwise reversed and remanded for new trial.

Charles N. Sadler and Mont. T. Prewitt, both of Kansas City, for appellant.

W. W. McCanles and Hogsett & Boyle, all of Kansas City, for respondent.

ELDER, W.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff in being thrown from a street car which he was undertaking to board, operated by defendant on an elevated structure at Armour Station, on the state line between Kansas City, Mo., and Kansas City, Ran.

On March 18, 1918, the defendant was operating a line of elevated street railway connecting Kansas City, Mo., and Kansas City, Ran., running across the state line between Missouri and Kansas. At the intersection of the state line, and what was known as Central avenue, it maintained an elevated station called Armour Station. The tracks at that point were about 30 feet above the street level. The station platform was about 50 to 55 feet in length, from east to west, and at the west end thereof was a railing or fence which extended out to within 3 feet 4 inches of the north rail of the west-bound track. On the north side of the platform, midway thereof, and about 4 or 5 feet north of the tracks, was a shelter house. About the center of the shelter house was a door leading out upon the station platform. Passengers intending to take a west-bound car ascended from the street by a stairway to the shelter house, passed through the shelter house and out upon the platform where cars customarily stopped to receive and discharge passengers.

Plaintiff, who is a Russian, was examined through an interpreter. He testified that he was 33 years of age, had come to America in August, 1913, lived in Kansas City, Kan., was employed at the time of the accident at Armours and had previously been working steadily for that concern in the wool house, where wool was washed and dried, earning about $10 or $11 a week; that from about 4 p. m. to 3:40 or p. m. on the aforesaid 18th day of March he had visited his sister at St. Mary's Hospital in Kansas City, Mo., had then taken a street car, and on his way home had stopped off at a saloon near the state line to cash his pay check, it being Saturday and pay day; that while in the saloon a friend, Dominick Crib, had bought him two glasses of beer, and plaintiff hod purchased a half pint of whisky, which he took with him; that at "15 or 20 minutes to 9" he and Crib (who at the time of the trial plaintiff testified was in France) left the saloon and ascended to the elevated platform at Armour Station, plaintiff intending to take passage upon a west-bound Central Avenue car; that when he went out upon the platform no car was there, but many people were waiting; that after he had waited "maybe 2 or 3 minutes," the Central Avenue car came and stopped to take on passengers, it being then full of people; that several of the persons waiting proceeded to get upon the car at the rear entrance, but that many more were left and "didn't get in"; that plaintiff was in the rear of those who got on, and had progressed as far as to have his right foot on the vestibule platform of the car, his left foot on the step, and had taken hold of the handlebars with both hands; that when he got on the car it was standing still, with the vestibule door open; that while in the position above mentioned the conductor rang the bell and the car started; that the car moved forward about 24 to 30 feet when the conductor shut the folding vestibule door, which struck plaintiff in the chest and pushed him off the car; that the rear end of the car was then about 6 feet beyond the platform, and he fell to the street pavement, about 25 feet below, striking on his head and feet or legs; that he became unconscious, and when he came to was in St. Mary's Hospital. On cross-examination plaintiff testified that while in the saloon before the accident he had nothing to drink but two glasses of beer; that he did not attempt to board the car while it was in motion, or run after it and get on while it was moving; that he knew he must not board a car while it was moving. On redirect examination he stated that he had purchased the half pint of whisky for one Alexander Cardash at the latter's request, and had not opened the bottle.

Adam French testified on behalf of plaintiff, through an interpreter, that he had known plaintiff a little in Russia; that he was standing on the platform at the station when plaintiff attempted to board the car in question, and that the car was then standing still; that the car was full with many people in the rear vestibule, and that there were about 20 people waiting to take the car; that when plaintiff got on the conductor rang the bell and the car started, with plaintiff standing on the steps; that when the rear end of the car was about 24 or 25 feet "off the platform," plaintiff fell to the street below, his body striking "towards Kansas" (or west) "from the foot of the steps." On cross-examination the witness stated that he had been in the saloon with plaintiff and Grib, and that Grib had bought them all two glasses of beer; that he had been standing on the platform, among the people who were waiting, about 2 or 3 minutes before the car came up; and that he wanted to take the same car as plaintiff, but that there was no way of getting on, as it was too full.

Alexander Krivinia, a witness for plaintiff, testified that he was on the station platform the night in question, waiting for a Central Avenue car; that he had been waiting "about 2 or 3 minutes," when the car came and stopped; that it was full of people, with a number waiting to get on; that some got on, but that he could not get on, although he tried; that he saw plaintiff, whom he had often seen before, attempting to board the car at the rear; that plaintiff "was on the step with one foot, with another foot on the platform inside of the car"; that when plaintiff got on the step the conductor rang the bell and the car started, with the door open; that plaintiff tried to get in the car, but was unable to do so, as it was full; that the conductor shut the door, pushing plaintiff off the car, and he fell, being then "about 30 feet" beyond the platform. On cross-examination the witness stated that the accident happened "pretty near 9 o'clock."

George Chess, ambulance driver for the Police Department of Kansas City, Kan., a witness for plaintiff, testified that when he arrived at the scene of the accident plaintiff's body was lying on the street about 30 feet west of the station, or 10 feet west of the foot of the stairway, between the curb and the surface car tracks. On cross-examination witness stated that Armour Station was elevated about 25 or 30 feet above the street surface; that the station platform was about 50 feet long; that when plaintiff was picked up he was unconscious, and witness did not examine his breath to see if he was intoxicated; and that neither the bottle of whisky which was in plaintiff's coat pocket, or the seal thereon, was broken.

William Lawson, police officer, a witness called by plaintiff, testified that he was standing across the street from where plaintiff fell; that he "heard a noise, and looked over and saw this man lying in the street, and went over there."

The evidence for defendant may be summarized as follows:

The deposition of L. C. Biederman, engaged in the bakery business at Keytesville, Mo., was read in evidence. The witness testified that on March 18, 1916, he resided in Kansas City, Kan., and that about 9:30 p. m. of that day he was going home in the back vestibule of a west-bound "pay-as-you-enter" street car; that as he got on the car at Armour Station, after a number of other people, the conductor closed the door; that "after the car had started, some one run out of the station and tried to get on the car, it was right close to the edge of the platform ;" that the car was then in motion, and when "this man" grabbed the rear end of the car he was within about 6 or 7 feet of the west end of the platform, with the car going "probably three or four miles an hour." On cross-examination witness said that when he saw "this man" first approach the car it was about 40 feet from the east end of the platform; that he supposed the platform was "probably 60 feet" in length; that he first saw the man as he ran out of the station.

George Heinzman testified that

He helped his father run a lunch wagon across the street from Armour Station; that on the night in question at 9:35 p. m., he was standing at the east end of the station platform; that "I was going up there to go home, and there was a Central Avenue car came up, and it stopped and loaded on about—oh, I should say 10 or 15 passengers, and just about the time it started I heard somebody holler, and I seen a man running, and at that time the car had run about 30 feet, and it seemed like he either tried to get hold the middle handhold or the last one, and just about that that time he went down. It just seemed like it happened in about a second."

On cross-examination the witness stated that after the man succeeded in getting hold of the hand rail he rode on the step of the car, "on the platform," for about 10 feet; that immediately upon passing the railing at the end of the platform he fell; that witness then went down to the street, and he lay about 10 feet west of the west end of the platform.

C. M. Snow testified that he was employed by Swift's Packing Company, and prior to 1917 had been employed by defendant as a motorman, being so employed on March 18, 1916;...