Rattan v. Central Electric Railway Co.

• Decision Date: 01 October 1906
• Citation: 96 S.W. 735,120 Mo.App. 270
• Parties: GERTRUDE RATTAN, Respondent, v. CENTRAL ELECTRIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

96 S.W. 735

120 Mo.App. 270

GERTRUDE RATTAN, Respondent, v. CENTRAL ELECTRIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 1, 1906

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Cause affirmed.

Frank G. Johnson, John H. Lucas and Henry S. Conrad for appellant.

(1) The court should have given appellant's instruction in the nature of a demurrer to the evidence at the close of plaintiff's case and at the close of all the evidence in the case. (a) Respondent's theory of the accident is contradicted by the physical facts of the case. Spiro v Transit Co., 102 Mo.App. 250; Spohn v Railroad, 87 Mo. 74; State v. Fannon, 158 Mo 149; Payne v. Railroad, 136 Mo. 562; Hook v Railroad, 162 Mo. 569; Nugent v. Milling Co., 131 Mo. 241; Kelsay v. Railroad, 129 Mo. 362; Oglesby v. Railroad, 177 Mo. 272; Weaver v. Railroad, 60 Mo.App. 207. (b) The exact cause of the accident, under the testimony on behalf of respondent, is left to conjecture. Warner v. Railroad, 178 Mo. 125; Smart v. Kansas City, 91 Mo.App. 586; Epperson v. Tel. Co., 155 Mo. 346; Smith v. Bank, 99 Mass. 605; Searles v. Railroad, 101 N.Y. 661; Spiro v. Transit Co., 102 Mo. 250. (c) The defendant was guilty of no negligence. 6 Cyc. of Pleading and Practice. 590; Goldsmith v. Building Company, 182 Mo. 597; Becker v. Building Company, 174 Mo. 246; Leslie v. Railroad, 88 Mo. 50; Gilson v. Railroad, 76 Mo. 282; Thompson v. Railroad, 140 Mo. 125; Werbowlsky v. Railroad, 86 Mich. 236; Carter v. Railroad, 42 F. 37; Palmer v. Railroad, 206 Pa. St. 574; Faulkner v. Railroad, 187 Mass. 254; Howell v. Traction Co., 202 Pa. St. 338; Hagerman v. Railroad, 16 Barber 353; Anthony v. Railroad, 27 F. 725; Hitchcock v. Railroad, 3 N.Y.S. 218. (d) There is no evidence that the defendant knew or could have known of any defect in the step of the car or had time to remedy the same. Crane v. Railroad, 87 Mo. 588; Wojtylak v. Coal Co., 188 Mo. 260; Edwards v. Railroad, 112 Mo.App. 658; Dutro v. Railroad, 111 Mo.App. 258; Furber v. Bolt and Nut Co., 185 Mo. 301; Thompson v. Railroad, 140 Mo. 125. (2) The court erred in giving instructions. (a) Instruction number 1, given on behalf of plaintiff, was error. Wojtylak v. Coal Co., 188 Mo. 260; Edwards v. Railroad, 112 Mo.App. 658; Dutro v. Railroad, 111 Mo.App. 258; Furber v. Bolt and Nut Co., 185 Mo. 301; Thompson v. Railroad, 140 Mo. 125. (b) Negligence is not defined, neither is the jury instructed as to the degree of care to be exercised by defendant. Magrane v. Railroad, 183 Mo. 119; Yarnall v. Railroad, 75 Mo. 575; Ravenscraft v. Railroad, 27 Mo.App. 617; Railroad v. Wood, 81 S.W. 1187, 90 N.Y.S. 336; Dougherty v. Railroad, 97 Mo. 647; Gilson v. Railroad, 76 Mo. 282. (3) The verdict is opposed to the weight of the evidence to such an extent that it is the unmistakable result of bias. O'Hara v. Iron Foundry Co., 66 Mo.App. 53; Friesz v. Fallon, 24 Mo.App. 439; Hickman v. Railroad, 47 Mo.App. 65; Walton v. Railroad, 40 Mo.App. 544; Weaver v. Railroad, 60 Mo.App. 210. (4) The verdict is excessive. Stoetzele v. Swearingen, 90 Mo.App. 588; Haynes v. Trenton, 108 Mo. 123. (5) The court erred in overruling defendant's motion for a new trial. Stoetzele v. Swearingen, 90 Mo.App. 588; Haynes v. Trenton, 108 Mo. 123; Foley v. Alkire, 52 Mo. 317; Spohn v. Railroad, 87 Mo. 74; Hook v. Railroad, 162 Mo. 569.

Reed, Yates, Mastin & Howell for respondent.

(1) Just what law of physics is contravened by "respondent's theory of the accident" is not disclosed by appellant's brief. No case cited by counsel under this head, even by remote analogy, can be said to be an authority in this case. Spiro v. Transit Co., 102 Mo.App. 263. (2) The doctrine of res ispa loquitur applies, and the allegation of notice contained in plaintiff's petition was mere surplusage and may be wholly rejected. Och v. Railroad, 130 Mo. 34; Tateman v. Railroad, 96 Mo.App. 453; McCarty v. Railroad, 105 Mo.App. 603; Aston v. Transit Co., 105 Mo.App. 233; Thompson v. Railroad, 111 Mo.App. 475; Chartrand v. Railroad, 57 Mo.App. 425; Clark v. Railroad, 127 Mo. 197. (3) Appellant's criticism of respondent's instruction number 1 is not well taken. It is not necessary to define the word "negligence," so says the Supreme Court. Sweeney v. Railroad, 150 Mo. 401; Follingham v. Transit Co., 102 Mo.App. 584. Moreover, mere non-direction is not error. Appellant could have asked for a definition had they desired one. Prismeyer v. Transit Co., 102 Mo.App. 523, citing Feary v. O'Neill, 149 Mo. 467; Edelman v. Transit Co., 3 Mo.App. 506; Tabler v. Railroad, 93 Mo. 86; Farris v. Railroad, 80 Mo. 328; Barrey v. Railroad, 98 Mo. 62; Kennedy v. Railroad, 36 Mo. 351; Huelsenkamp v. Railroad, 34 Mo. 45. (4) The verdict is fully supported by the evidence.

OPINION

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 southbound 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 one hundred 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 indenture 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 answered: "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 there, 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 non-slipping 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 non-slipping 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...