Quirk v. Metropolitan St. Ry. Co.

Decision Date06 January 1919
Docket NumberNo. 13116.,13116.
Citation200 Mo. App. 585,210 S.W. 103
PartiesQUIRK v. METROPOLITAN ST. RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by Charles Quirk, by next friend, Maurice Quirk, against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, for appellant.

McCune, Harding, Brown & Murphy, of Kansas City, for respondent.

BLAND, J.

This is an action for personal injuries. Plaintiff recovered a verdict and judgment for $8,500 but voluntarily remitted $1,000 of that sum, and defendant has appealed.

Defendant's first point is that its demurrer to the evidence should have been sustained. The evidence taken in its most favorable light to plaintiff shows that on the afternoon of July 4, 1910, plaintiff, a boy of the age of 7 years, was waiting at the end of the Thirty-First Street car line at Thirty-Third and Summit streets, in Kansas City, Mo., for his father to come home to take him to a picnic. He was playing with one Francis Eagan, and some other children. They were seated upon the curb of the sidewalk near which was standing a car of the defendant. This car is described as one of a type known as a "goat" car. The Eagan boy snatched a fire cracker from plaintiff and ran with the same onto the rear end of defendant's car, plaintiff after him. When both of the boys had gotten on the car, the motorman and conductor, who had been in a nearby drug store, came out of said store, and the motorman hollered to the conductor, "Let her go!" They boarded the car, the motorman in the lead. The latter released the hand brake on the rear of the car, and the car started forwards of its own momentum. After this the conductor, who was standing upon the rear step of the car, told the boys to get off — "that they had no business on the car." The boys then proceeded to the front end of the car, the motorman closely behind them. The conductor remained on the rear platform. The Eagan boy proceeded to the front steps and jumped off the car ahead of the plaintiff, falling and hurting himself slightly. Plaintiff then got upon the front steps, when the motorman waved his controller at him saying, "Get off of here, boys." Plaintiff stood on the steps, attempting to get off. The car was coasting downgrade and increased its speed as it moved. It increased its speed from 7 or 8 miles to 9 or 10 miles per hour and ran about 60 feet, while plaintiff was standing on the step.

Plaintiff attempted to get off the car by putting his foot down and raising it up again, evidently trying to touch the pavement, He testified that he was afraid to let go of the car; that he was afraid to get back into the car after what the motorman had said to him. Finally as before stated, when the car had gone about 60 feet, after plaintiff had gotten on the step, he fell off, his right leg going under the car resulting in it being cut off about 6 inches below the knee. The motorman was aware of the presence of plaintiff upon the step, as we will hereinafter point out.

In connection with defendant's insistence that its demurrer to the evidence should have been sustained, it argues that the proximate cause of plaintiff's getting off the car, resulting in his injury, was the waving of the controller by the motorman at plaintiff, and that it was neither pleaded nor proved that the motorman was the agent of the defendant, with authority to eject trespassers from its cars.

Plaintiff's instruction No. 1 told the jury that they must find that plaintiff attempted to get off the car at the order and direction of the conductor. The fact that the motorman joined in the request or order of the conductor, and that he threatened plaintiff, would not show as a matter of law that the plaintiff got off the car on account of being ordered by the motorman, and not by the conductor. Plaintiff did not testify that he was afraid of the motorman, and attempted to get off the car by reason of the fact that the motorman threatened him, but said that he was afraid to get back on the car on account of the threat of the motorman, and (as we construe his evidence) that he was afraid to get off on account of the rapid movement of the car. It was the conductor who gave the original order, and the question as to whether or not the proximate cause of plaintiff's getting off the car was the order of the conductor, or that of the motorman, was clearly one for the jury.

Defendant urges that there was error in the giving of plaintiff's instruction P-1. In support of this contention defendant argues that the proximate cause of plaintiff getting off or falling off the car was the conduct of the motorman. This point has already been decided against the defendant. This instruction proceeded upon the theory that the conductor ordered plaintiff off the car while it was in motion; that the plaintiff was on the step, attempting to get off, in obedience to this order; that the motorman and conductor knew that he was attempting to alight therefrom while the car was in motion; and that the motorman negligently failed to stop the car for the purpose of permitting plaintiff to alight. It is the contention of the defendant that the petition Proceeds upon the theory that the plaintiff was in a position of peril on the step of the car, and not on the theory that plaintiff was on the step attempting to alight from the car. A very ingenious argument is made that there is a substantial difference. There are many reasons why there is no merit in this contention, among which is this;

After verdict the petition must be construed liberally. Applying such a construction, the petition alleges that defendant's agents negligently ordered plaintiff off the car while it was in motion; that they saw plaintiff on the step in a perilous position, and did not stop the car to permit him to alight. The petition alleges, by inference, at least, that plaintiff was on the step and attempting to alight; that this was a perilous position; and that defendant's servants knew of it, and failed to stop the car to permit him to alight. The instruction follows the petition as we have construed it.

Defendant urges that there is no proof that the conductor and motorman knew that plaintiff was upon the step. Whether the conductor knew this fact, the motorman certainly did, and he should have stopped the car. The fact that the instruction required the jury to find that the conductor also knew it was an assumption of an unnecessary burden. The evidence shows that the boys were in front of the motorman and conductor as they proceeded to the front end of the car, to obey the order given by the conductor that the motorman must have heard; the motorman followed the boys to the front of the car. From this situation alone the inference is that he knew what the boys were doing. There was only one means of exit in the front of the car, and the boys had no way of obeying the conductor, except by going down the steps and getting off through this exit. Aside from this, the motorman, when he reached his position, which was before plaintiff fell, stood in the middle of the front vestibule of the car, within two feet of where plaintiff was standing on the step, holding onto the front handrail. The motorman testified that "I glanced around every once in a while"; but he said he did not see plaintiff on the step. Other witnesses testified that there was nothing to prevent the motorman...

To continue reading

Request your trial
17 cases
  • Gover v. Cleveland
    • United States
    • Missouri Court of Appeals
    • February 18, 1957
    ...203 Mo.App. 623, 630, 221 S.W. 819, 823(4); Lowder v. Kansas City Rys. Co., Mo.App., 221 S.W. 800(1); Quirk v. Metropolitan St. Ry. Co., 200 Mo.App. 585, 588, 210 S.W. 103, 105(2); Bealmer v. Hartford Fire Ins. Co., Mo.App., 193 S.W. 847, 848(1).3 Compare Slicer v. W. J. Menefee Const. Co.,......
  • Murphy v. Cole
    • United States
    • Missouri Supreme Court
    • December 18, 1935
    ... ... 35 C. J., p. 313, ... sec. 324, p. 322, sec. 338, p. 394, sec. 439; Johnson v ... K. C. Elec. Light Co., 232 S.W. 1094; Quirk v. Met ... St. Ry. Co., 200 Mo.App. 585; Richey v. Railroad ... Co., 7 Mo.App. 581; Oakley v. Richards, 275 Mo ... 266, 204 S.W. 505; ... Ry. Co., 125 Mo. 415; Baker v. Ry. Co., 122 Mo ... 599; Herndon v. Robertson Construction Co., 227 ... Mo.App. 698; Potter v. Metropolitan Street Ry. Co., ... 142 Mo.App. 226; Guntley v. Staed, 77 Mo.App. 163 ... (b) Appellant having requested and the court having given an ... ...
  • Lester v. Sayles, No. 74719
    • United States
    • Missouri Supreme Court
    • March 23, 1993
    ...appellate decisions, however, began to erode the holdings of the Holmes era cases. For example, in Quirk v. Metropolitan Street Ry. Co., 200 Mo.App. 585, 210 S.W. 103 (1919), it was held that a seven-year-old child who had jumped from a streetcar could not be contributorily negligent, in pa......
  • Stipetich v. Security Stove & Mfg. Co.
    • United States
    • Missouri Court of Appeals
    • February 16, 1920
    ...avoid injuring him, even though he was a trespasser, is well settled by numerous decisions in our state. Quirk v. Metropolitan St. Ry. Co., 200 Mo. App. 585, 210 S. W. 103, 105, 106; Dalton v. Missouri, Kansas, etc., R. Co., 276 Mo. 663, 208 S. W. 828, 830; Brill v. Eddy, 115 Mo. 596, 603, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT