Quisenberry v. Metropolitan Street Railway Company
| Decision Date | 07 March 1910 |
| Parties | MARTHA J. QUISENBERRY, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
REVERSED AND REMANDED (with directions).
Order reversed and cause remanded.
Charles L. Botsford and J. H. Lucas for appellant.
(1) There was no proof that said fall was caused by the jerk or sudden starting of said cars or by any other alleged acts of negligence charged in the petition. There is no room for the application of the doctrine of res ipsa loquitur to this case. Peck v. St. Louis Transit Co., 178 Mo. 617; Miller v. Railroad, 5 Mo.App. 471; Schaefer v Railway, 128 Mo. 64; Dougherty v. Railway, 81 Mo. 325; Bartley v. Railway, 148 Mo. 124; Hite v. Railroad, 130 Mo. 132, 139; Prior v Railway, 85 Mo.App. 367; Gallagher v. Edison, etc Co., 72 Mo.App. 576; Guffey v. Railroad, 53 Mo.App. 462; McGrath v. Transit Co., 197 Mo. 97; Benedict v. Potts, 88 Md. 52; 6 Cyc., p. 590, par 1; 4 Ency. Pleading and Practice, p. 342, par. 10, and note 3, and cases there cited; Walhier v. Railroad, 71 Mo. 514; Gurley v. Railway, 93 Mo. 445; Harty v. Railway, 95 Mo. 368; Lee v. St. Louis Mfg. Co., 6 Mo.App. 578; Feary v. Railway, 162 Mo. 75; Merriweather v. Railway, 45 Mo. 528; Conway v. Railway, 24 Mo.App. 235; Erwin v. Railway, 94 Mo.App. 288; Chaney v. Railroad, 176 Mo. 598; Railroad v. Klein, 43 Ill.App. 63; Heagle v. Railway, 76 Ill. 501; Hewes v. Railroad, 217 Ill. 500. The injury to deceased was the result of his own negligence. 2 Hutchinson on Carriers, sec. 890, and authorities there cited; Jewell v. Railway, 54 Wis. 610; Hickey v. Railroad, 14 Allen 429; Nichols v. Railroad, 106 Mass. 463; Railroad v. Schiebe, 44 Ill. 460; Burrows v. Railroad, 63 N.Y. 556; Railroad v. Swift, 26 Ind. 459; Railroad v. Randolph, 53 Ill. 510; Railroad v. Slatton, 54 Ill. 133; Secor v. Railroad, 10 F. 15; Bon v. Assurance Co. (Iowa) 10 N.W. 225; Railroad v. Bangs (Mich.), 11 N.W. 276; Elder Demster, etc., Co. v. Pauppirt, 125 F. 732, S. C., 60 C. C. A. 500; 3 Hutchinson on Car., sec. 1170, note 1; Railroad v. Andrews, 39 Md. 329; Railroad v. Morris, 31 Gratt. 200; Railroad v. Aspell, 23 Penn. St. 147; Saunders v. Railway, 10 Okla. 325; 61 P. 1075; Schelber v. Railroad (Minn.), 63 N.W. 1034; 3 Hutch. on Carriers, secs. 1194, 1197; Smotherman v. Railway, 29 Mo.App. 265; Chaney v. Railway, 176 Mo. 598; Railroad v. Jones, 95 U.S. 439; Goodlett v. Railroad, 122 U.S. 391; Wheeler v. St. Joseph S. Y. & T. Co., 66 Mo.App. 260; Hite v. Railway, 130 Mo. 132; Cothron v. Cudahy Pack. Co., 98 Mo.App. 343; Prior v. Railway, 85 Mo.App. 367; Bartley v. Railway, 148 Mo. 124; McGrath v. St. Louis Transit Co., 197 Mo. 97; 3 Hutchinson on Car., sec. 1175, note 1; Smotherman v. Railway, 29 Mo.App. 265; Chaney v. Railroad, 176 Mo. 598; Scheber v. Railroad (Minn.), 63 N.W. 1034. (2) There was no act of negligence set out or designated in the petition herein as the foundation of this action and there is nothing in the evidence pointing out what such act of negligence consisted of, upon which the plaintiff depends for a recovery in this case. Railway v. Friedman, 146 Ill. 583; Railway v. Cable, 113 Ill. 115; Gurley v. Railroad, 93 Mo. 445.
George B. Strother and W. F. Guthrie for respondent.
(1) Under a demurrer to the evidence, every inference favorable to the plaintiff must be made. Montgomery v. Railway, 181 Mo. 477; Powers v. Transit Co., 202 Mo. 267; Moore v. Transit Co., 194 Mo. 1. (2) A carrier receiving passengers is negligent if it fails to afford them an opportunity to place themselves in safety before starting the conveyance in any such manner as to injure them. Van Horn v. Transit Co., 198 Mo. 481. (3) While a party vouches for the veracity of his own witnesses, he is not bound by their statements so far as they differ from the statements of other witnesses. Bond v. Railroad, 110 Mo.App. 131; Dinsmore v. St. Louis, 192 Mo. 255; Knorpp v. Wagner, 195 Mo. 637; Mockowik v. Railroad, 196 Mo. 550. (4) So far as the presumption is not in conflict with matters affirmatively established, there is a general presumption of due care in favor of one fatally injured. Buesching v. Gaslight Co., 73 Mo. 219; Crumpley v. Railroad, 111 Mo. 152; Baltimore, etc., Co. v. Landrigan, 191 U.S. 461. (5) While a jury may not speculate as to unestablished facts, or determine upon the existence of one or more ultimate facts equally consistent with the evidence, yet the jury may exercise their judgment as to the inference which should be drawn, even though the inference must be drawn from circumstantial evidence. Winkle v. Dry Goods Co., 132 Mo.App. 656; Yongue v. Railroad, 133 Mo.App. 141; Frank v. Furnace Co., 10 Mo.App. 61.
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 somewhat 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 near deceased at the street crossing waiting for the car and observed that he had the easel and frame. He testified that when the car stopped he went to the front end of the rear coach and got in, while he observed that deceased started towards the front end of the grip car. That is all that he saw. But he stated that he got onto the outside platform of the car, went in the door and was starting down the aisle when the car started with such force or suddenness as to cause him to rush forward three or four seats, where he caught hold of one and seated himself. He then stated that the car, after running a distance, was brought to a stop and he saw that deceased was lying upon the street. His statement as to the distance the car ran, was not definite. He thought it was from thirty-five to fifty feet, but that it might have been one hundred feet. Many questions were propounded to the witness to ascertain the character of the starting of the car, whether it was sudden, violent or unusual. He stated that he very frequently had known the cars to be started with as much force and suddenness as on this occasion, but that he thought they were oftener started with less violence.
It seems manifest that no case was made for the plaintiff and that the trial court's first impression was the correct one. The witness last referred to did not see deceased after they started for different cars, and he knew nothing whatever as to what caused him to fall. He could not have testified that deceased got upon the car at all. He testified to a sudden starting, which might have been the cause of one falling who was in certain position in attempting to board a car. But the evidence introduced by plaintiff has not left it necessary to deal in uncertainties or probabilities. A witness, whose veracity is vouched for by her, saw how the affair...
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