Reisinger v. Kansas City Rys. Co.

• Decision Date: 05 May 1919
• Docket Number: No. 13114.,13114.
• Parties: REISINGER v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

211 S.W. 909

REISINGER v. KANSAS CITY RYS. CO.

No. 13114.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Frank Reisinger against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Clyde Taylor, of Kansas City, for appellant.

J. G. Littick, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages for personal injuries alleged to have been received by being thrown from one of defendant's street cars as he was endeavoring to alight. He recovered judgment in the trial court.

A demurrer to the evidence was offered by defendant and refused. It was offerred on the ground that the accident as detailed by plaintiff was not in accord with physical laws and what is called the physical facts, in that he fell lengthwise parallel with the track and his head towards the front of the car; and Scroggins v. Street Railway, 138 Mo. App. 215, 120 S. W. 731, and Daniels v. Street Railway, 177 Mo. App. 280, 164 S. W. 154, are cited in support of the point. The cases are not applicable to the facts shown in this case. The car from which plaintiff fell had a folding step worked by an iron crank in the hands of the conductor. The step would raise or fold upward as the car vestibule doors were being closed. There was evidence tending to show that plaintiff, in endeavoring to get off, got upon the step, and before he had entirely left it the conductor began to close the door and the step to raise; the effect being to throw plaintiff off. This was a showing which made it altogether probable that plaintiff's body would be so acted upon, together with his involuntary struggle to prevent falling, as to interfere with what would otherwise have been a natural way for him to fall.

About a week after the accident plaintiff was riding with the same conductor, when they got into a conversation in which the conductor stated how and why the accident occurred. Evidence of this conversation was objected to by defendant, but admitted on the ground of being a part of the res gestæ. We think it was not. It was a statement in reference to a past transaction. This was such error as will cause a reversal of the judgment. Ruschenberg v. Railroad, 161 Mo. 70, 80, 61 S. W. 626; Koenig v. Railroad, 173 Mo. 698, 721, 73 S. W. 637.

The judgment is reversed, and the cause remanded.

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