Reynolds v. Metropolitan St. Ry. Co.

• Decision Date: 18 May 1914
• Docket Number: No. 10727.,10727.
• Citation: 168 S.W. 221,180 Mo. App. 138
• Parties: REYNOLDS v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Court of Appeals

168 S.W. 221

180 Mo. App. 138

REYNOLDS v. METROPOLITAN ST. RY. CO. et al.

No. 10727.

Kansas City Court of Appeals. Missouri.

May 18, 1914.

1. CARRIERS (§ 306) — INJURIES TO ALIGHTING PASSENGER — JOINT TORT-FEASORS — STREET CAR COMPANY AND CITY.

Where a street car passenger was injured while alighting from the car by the sudden starting thereof, causing her to step into a hole in the pavement, an action against the street car company and the city was maintainable against an objection that the petition alleged a joint wrong, while the facts negatived a tort of that character, under the rule that, where an injury proceeds from the concurring negligence of different persons under such circumstances that the negligence of either is to be deemed an efficient cause of the injury, the person injured has an action against either or both.

2. TORTS (§ 22) — JOINT TORT-FEASORS.

A charge against two persons as joint tort-feasors means only that their several negligent acts co-operated to produce a single result, independent of any element of conspiracy, understanding, or mutual purpose.

3. PLEADING (§ 407) — ANSWER TO MERITS — EFFECT — WAIVER OF FORMAL DEFECTS.

Defendant, by answering to the merits, waived all merely formal defects in the petition.

4. NEW TRIAL (§ 31) — REMARKS OF COUNSEL — OBJECTIONS.

Objections to remarks of counsel, not made at the time, but first raised on motion for a new trial, are waived.

5. DAMAGES (§ 158) — PERSONAL INJURIES — EVIDENCE.

Where a petition alleged that plaintiff's injury caused inflammation of the bladder, evidence of urinary disorders was admissible.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Mary Reynolds against the Metropolitan Street Railway Company and Kansas City. Judgment for plaintiff, and defendants appeal. Affirmed.

John H. Lucas, of Kansas City, and L. T. Dryden, of Independence, for appellant Metropolitan St. Ry. Co. A. F. Evans, J. W. Garner, and H. A. Ault, all of Kansas City, for appellant Kansas City. Kimbrell & White, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff sued the Metropolitan Street Railway Company and Kansas City to recover damages for personal injuries she alleges were caused by negligence of both defendants. Separate answers were filed traversing the petition and alleging the defense of contributory negligence. The jury returned a verdict of $5,500 against both defendants, but on the hearing of the motion for a new trial a remittitur of $2,000 was entered, and judgment was rendered for plaintiff for $3,500. Both defendants appealed. The petition alleges:

"That at a point on Troost avenue a short distance south of the south line of Tenth street, and at a point within the line of travel on Troost avenue, and near to the regular and usual stopping place for north-bound cars on Troost avenue before crossing Tenth street, there was, on the 18th day of November, 1910, and for a long time prior thereto had been, an excavation, depression, or hole in the street pavement, which hole was five or six inches deep and from two to three feet across, which rendered said street at said point unsafe and dangerous to persons traveling along and on said street, and especially dangerous to persons alighting from the rear end of a north-bound Troost Avenue street car, said hole or excavation being at a place where the rear vestibule and steps of a north-bound car would usually or naturally stop to discharge and take on passengers; that defendant Kansas City knew, or, by the exercise of reasonable care, might have known, of the unsafe and dangerous condition of said street at said point a sufficient length of time before the injury to plaintiff hereinafter set forth to, by the exercise of reasonable diligence and care, have repaired said street and placed the same in a condition reasonably safe for travel thereon, but carelessly and negligently failed so to do, and carelessly and negligently permitted said street to be and remain in said unsafe condition for travel thereon; that on the 18th day of November, 1910, plaintiff was a passenger on a north-bound car of defendant on its Troost Avenue line, and had paid the usual fare of five cents to defendant Metropolitan Street Railway Company, and was a passenger for hire on said car; that when said car reached a point immediately south of Tenth street, at the intersection of Tenth street and Troost avenue, the agents and servants of the Metropolitan Street Railway Company in charge of its car stopped said car for the purpose of permitting passengers so desiring to alight therefrom; that the defendant Metropolitan Street Railway Company carelessly and negligently stopped its car so that the car step thereof was so close to the hole mentioned heretofore that one alighting from the rear step of said car would naturally step into said hole, and that plaintiff did not know said hole was in the street until she was thrown from the car as aforesaid; that plaintiff, desiring to alight at said point at said time, proceeded with due care to the steps leading from said car, and was in the act of stepping from the car to the ground, when the agents and servants of the defendant Metropolitan Street Railway Company in charge of said car suddenly and swiftly started the car forward, and plaintiff was thereby thrown with great force and violence to and upon the hard pavement of the street, and into the excavation or hole hereinbefore described."

Plaintiff, a young, unmarried woman, became a passenger on a northbound Troost Avenue car operated by defendant railway company, and was in the act of alighting at Tenth street when the car, which had stopped to receive and discharge passengers, suddenly started forward as she was stepping to the pavement and was holding with her left hand to a handhold at the rear end of the car. The sudden...