Rattan v. Central Electric Ry. Co.

• Decision Date: 01 October 1906
• Citation: 120 Mo. App. 270,96 S.W. 735
• Parties: RATTAN v. CENTRAL ELECTRIC RY. CO.
• Court: Missouri Court of Appeals

96 S.W. 735

120 Mo. App. 270

RATTAN v. CENTRAL ELECTRIC RY. CO.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

1. CARRIERS — INJURY TO STREET RAILWAY PASSENGER—CAUSE OF INJURY—EVIDENCE.

Evidence, in an action for injury to a passenger on a street car, held sufficient to authorize a finding that the accident was caused by the passenger's heel catching on a piece of metal projecting from the step of the car.

2. SAME—NEGLIGENCE—PRIMA FACIE CASE— BURDEN OF PROOF.

Proof of injury to a passenger, by the heel of her shoe catching on a piece of metal projecting from the step of the street car, makes a prima facie case of negligence, putting on the carrier the burden of disproving it.

3. APPEAL—HARMLESS ERROR—INSTRUCTIONS.

Error, if any, in giving instructions as to negligence, without defining it, is harmless; the instructions having fully defined the degree of care resting on defendant, the absence of which was negligence.

4. TRIAL—REQUEST FOR INSTRUCTIONS—MORE SPECIFIC INSTRUCTIONS.

One desiring a more specific definition of what constitutes ordinary care than is contained in the charge must request it.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by Gertrude Rattan against the Central Electric Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

John H. Lucas, Frank G. Johnson, and Henry S. Conrad, for appellant. Reed, Yates, Mastin & Howell, for respondent.

BROADDUS, P. J.

Suit for damages for personal injury. For convenience we adopt the statement of plaintiff setting out, in substance, her cause of action, viz.: "The petition * * * recites that on the 16th day of December, 1903, the plaintiff was a passenger on one of defendant's south-bound cars on Grand avenue in Kansas City, and that while in the act of alighting therefrom at Twelfth street and Grand avenue, and while the car was stopped for the purpose of permitting her to do so, and while in the exercise of ordinary care and caution on her part, she caught the heel of her left shoe upon a sharp and jagged piece of steel, iron, or other metal projecting from the step of said car, and was thereby thrown violently forward and upon the pavement of said Grand avenue. That defendant carelessly and negligently suffered and permitted the said step of said car to become and remain in a dangerous, defective, and unsafe condition, in that said step had been carelessly and negligently suffered and permitted by defendant to be and remain in an old, worn, and dilapidated condition, and the iron and steel parts thereof worn, broken, and bent in such a manner that there were sharp and rough places thereon liable to cause the injury of passengers alighting from said car." The evidence of plaintiff tended to prove the allegations of her petition. The contention of the defendant is that plaintiff's theory of the occurrence is contradicted by the physical facts of the case. The plaintiff weighed about 100 pounds and was compelled to use a crutch in walking, the result of an injury she had suffered in her girlhood. She stated substantially that as she came to the step to alight she was facing west, and that she took hold of the handle on the right side of the car, put her left foot onto the edge or broken part of a piece of metal which projected up an inch or an inch and one-half and which pushed into the heel of her shoe, and that as she started to step to the ground the heel of her shoe was held by the projection, and she was thrown upon the street, and that the heel of her shoe remained fastened to the metal after she had fallen. The metal on the step was shown to be what was known as the "Mason safety tread," fastened to the top of the wooden step of the car. She was corroborated by other witnesses, to the effect that, while she was lying on the ground, her foot was still held fast by said projection, and that there was an indentation in the heel of her left shoe which might have been made by the projecting metal.

On cross-examination the plaintiff at first stated that the edges of the metal plate were projecting upward, and that they were not smooth. She was asked if the edges on the plate were smooth or otherwise. She answer: "No, sir; it was not smooth—kind of broken." She was then asked: "Was it an even surface on the edge of the plate, or not?" She answered: "Yes, I believe it was." Question: "Now what part of this plate was the piece that caught your shoe on?" Answer: "On the back part." Question: "On the back part?" Answer: "Yes, sir." The answers appear somewhat contradictory, but it is evident that plaintiff meant to say that the outer edge of the plate was smooth, but that the back edge was broken and rough. A step with a safety tread of the kind was brought into court, which appeared to be in good condition; but plaintiff and another witness testified that it was not the one in controversy. But certain of defendant's witnesses stated that it was the same. It appeared, however, that, if it was the same, it had been painted since the occurrence. One of defendant's witnesses described the plate in controversy as follows: "They are made of rolled, plate steel. They are rolled with a little V-shaped corrugation in them just as shown here (alluding to the one present), and then there is a dovetail formed in between the V-shaped places by a thin edge—a little plane, still extending up, with a heavy dovetailed plate longitudinally in between—as you can see here, just about three-eighths of an inch wide. Then in this little pocket, or dovetailed corrugation there are strips of lead fastened in there, so that the lead comes even with the top edge of that little strip of steel flange that projects up over the main plate. The lead is put in, as a nonslipping material, and the steel is just simply to reinforce the lead, and to keep it from mashing out." The witness, who was a master mechanic, was asked: "What is the purpose of the lead being put in there? Answer: "The lead is put in because it is a nonslipping material, and, if you don't confine it in some way or another, it is soft, you know, and it will gradually mash away, and holes be worn in it, so that it is confined in this little strip, and the least quantity of steel is put up to come in contact with it. It is simply to protect the sides of the lead."

We gather from the description that the metal plate in question was merely a frame adapted to the purpose of holding the lead in place; that the parts inclosing the lead are made of thin steel. If the lead should be worn or displaced, this thin frame would extend above the surface. We take it for granted that, as a general rule, all mechanical contrivances are liable to change and deterioration from use. And it is plain that the one in dispute is no exception to the rule. We think it possible that the lead in the metal frame had become worn or displaced so as to have left the thin edge of the plate extending above the surface in its worn state, and that thus exposed it would become broken, and in that condition have caught and held the heel of the plaintiff's shoe as detailed in her testimony. But it is insisted that if the occurrence, as plaintiff gave it, was not impossible, it...