Quirk v. The Metropolitan Street Railway Company
| Decision Date | 06 January 1919 |
| Citation | 210 S.W. 103,200 Mo.App. 585 |
| Parties | CHARLES QUIRK, by Next Friend, MAURICE QUIRK, Respondent, v. THE METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Wm. O. Thomas, Judge.
AFFIRMED.
Judgment affirmed.
Clyde Taylor and Roscoe P. Conkling for appellant.
Harding Murphy & Harris for respondent.
This is an action for personal injuries. Plaintiff recovered a verdict and judgment for $ 8500 but voluntarily remitted one thousand dollars 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 seven years, was waiting at the end of the Thirty-first Street car line at 33d and Summit Streets, in Kansas City, Missouri, for his father to come home and 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 on to 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 step attempting to get off. The car was coasting down grade and increased its speed as it moved. It increased its speed from seven or eight miles to nine or ten miles per hour and ran about sixty 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 motarman had said to him. Finally, as before stated, when the car had gone about sixty 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 six 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 urges 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 statement 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 on to the front hand rail. 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 from seeing plaintiff on the step if he had looked. So the jury had a right to disregard the statement of the motorman that he did not see plaintiff. Taking all of this evidence in its most favorable light to plaintiff, it shows that the motorman knew plaintiff was upon the step and in a...
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