Quisenberry v. Metropolitan St. Ry. Co.

• Decision Date: 07 March 1910
• Parties: QUISENBERRY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

126 S.W. 182

142 Mo. App. 275

QUISENBERRY v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

March 7, 1910.

1. NEGLIGENCE (§ 134) — SUFFICIENCY OF EVIDENCE.

Where the evidence permits an inference of negligence, but just as reasonably permits an inference of a cause which is not negligence, no case is made.

2. CARRIERS (§ 346) — INJURIES TO PASSENGER — CONTRIBUTORY NEGLIGENCE.

In an action against a street railroad for death of a passenger who fell off a car, evidence held to show that the cause of the mishap was deceased's negligence.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Martha J. Quisenberry against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John H. Lucas and Chas. L. Botsford, for appellant. Geo. B. Strother and Guthrie & Smith, for respondent.

ELLISON, J.

Plaintiff is the widow of Roger X. Quisenberry who was killed by falling from one of defendant's street cars in Kansas City. She brought this action for damages, charging in her petition that his falling from the car was caused by the negligence of defendant. At the close of the evidence in her behalf the court gave a peremptory instruction to the jury to find for the defendant. She then filed a motion for new trial, which was sustained, and thereupon defendant appealed from that order.

It appears that defendant was operating cable street cars, composed of what are called "grip cars" coupled to regular street car coaches. The grip cars are each run and controlled by a "gripman," who operates a lever, the shank of which extends down under the car and thence through slots in the street to the cable rope beneath the surface. The grip car is open at the sides, and has seats for passengers on either side of a narrow closed aisle in which the gripman stands. A foot or running board extends the full length of each side of the car, and it is the means by which passengers get onto the car at the end of a seat they may intend to occupy. The roof of the car is some higher in the center than at the ends.

There were but three witnesses produced by plaintiff, and one of these was not at the place and knew nothing of the accident. It appears that deceased was carrying a wooden easel and a frame. The easel was shaped something like the letter "A" and was perhaps six feet high. The frame was about two feet square. He boarded the grip car at the front end. The only witness who saw him was on the car when he got on. She testified that he got on the car and seated himself in the front seat; that is, he sat in the seat, not squarely, but had one foot hanging out, and perhaps resting on the running board. The roof of the car in the front was not high enough to permit the easel to stand on the floor in a perpendicular position, and deceased leaned it forward. The bottom of the easel was near the width of the seat, tapering up to the top, and doubtless this was what caused deceased to place himself in the seat in a somewhat awkward position. After the car started and was under full way, he concluded to change his position, and took his easel and frame, got up on the running board, and with one hand holding onto one of the uprights supporting the roof, with his face to the car and back to the street, he began to move down towards a seat nearer the center of the car. In doing this, he fell over backwards onto the street and received the injury from which he died.

The other witness was standing...