Roach v. Kansas City Rys. Co.

• Decision Date: 26 June 1920
• Docket Number: No. 13609.,13609.
• Citation: 228 S.W. 520
• Parties: ROACH v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

228 S.W. 520

ROACH v. KANSAS CITY RYS. CO.

No. 13609.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Rehearing Denied October 7, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by George W. Roach against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. N. Sadler and E. E. Ball, both of Kansas City, Mo., and R. J. Higgins, of Kansas City, Kan., for appellant.

T. J. Madden and C. R. Leslie, both of Kansas City, Mo., for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $6,200 for personal injuries sustained by him on July 28, 1918, as the result of a fall caused by a sudden jerk of one of defendant's street cars on which he was a passenger, and resulting in plaintiff being thrown from the rear vestibule of said car from which he was alighting. The accident happened at Eighth and Charlotte streets in Kansas City, Mo., about 4 a. m. Plaintiff was a passenger on one of defendant's west-bound cars on Eighth street. The regular stopping place for such cars was on the east side of Charlotte street. The car had an inclosed vestibule, with folding doors and steps operated by the conductor. It was the custom, pleaded in the petition and shown in the evidence — by fair inference, that when the swinging doors were opened there was an implied invitation for passengers to alight. The platform of the car was divided at the outer edge by a vertical rod forming an entrance and exit way. When the car approached Charlotte street plaintiff's brother pressed the button to signal the car to stop at that street. Plaintiff, his brother, and another person walked to the rear vestibule, and when plaintiff and his brother reached the same the conductor opened the doors for the purpose of permitting them to alight. The car then came to a stop, or slowed down practically to a stop, at the usual stopping place. Plaintiff then had hold of the iron vertical rod placed on the platform just above the step, and was leaning forward preparatory to stepping down to the step. At this time the car gave a sudden, violent, and unusual jerk, causing plaintiff to be thrown to the pavement and to alight on the back of his head, fracturing his skull and resulting in other severe injuries.

Defendant's first point is that its demurrer to the evidence should have been sustained for the reason that the petition charges that the car started by a sudden jerk as plaintiff was attempting to alight therefrom, while the proof shows that there was no negligence on the part of defendant in that respect, but that the car jerked while plaintiff was standing on the back platform, and not while he was in the act of alighting therefrom. As already stated, the car had slowed down or stopped for the purpose of permitting passengers to alight, the conductor had opened the vestibule doors for such purpose, plaintiff had proceeded near to the edge of the platform, and had taken hold of the railing and was leaning forward preparatory to alighting. There is no doubt but that the proof shows that he was in the act of alighting from the car at the time it was jerked.

The evidence shows that at the time the car jerked it was headed down hill, and that it again stopped in about 10 feet. It is contended that the car could not have given the violent jerk described in the evidence and yet have stopped within 10 feet, and that therefore the testimony that there was a violent jerk is contrary to physical law. We are not prepared to sustain this contention.

It is urged that the court erred in allowing plaintiff's brother to testify that plaintiff had lost weight since the accident, for the reason that there was no pleading to this effect. The petition shows to the contrary. It is contended that there is nothing in the evidence to show that if plaintiff lost weight it might have resulted from the accident. The evidence shows that plaintiff received a most serious injury; that his skull was fractured; that his left car was badly injured and the hearing therein permanently destroyed, and there were hemorrhages therefrom, together with hemorrhages from the mouth and nose, every few days and up to the time of the trial; that his eyesight had been materially and permanently impaired; that plaintiff had suffered a gradual and progressive degeneration and weakening, both physical and mental; and that his intellect had, become dulled. The admission of evidence of loss of weight was proper. Costello v. Kansas City, 219 S. W. 386, 390. Plaintiff's brother was permitted to testify that plaintiff appeared, when the witness talked to him, as though he could not understand immediately what was being talked about. Et is urged by the defendant that a lay witness may not give his opinion as to another's mental condition. We think the evidence was clearly competent. It was stated in Fulton v. Met. St. Ry. Co., 125 Mo. App. 239, 247, 102 S. W. 47, 49:

"Opinions may be given by nonexpert witnesses as to state of health, hearing, or sight, or the ability of another to use his arms or legs naturally, and whether such other is apparently suffering pain or is in possession of his or her mental faculties, or is intoxicated, excited, calm, angry, or the like."

See, also, Kirchof v. United Rys. Co., 155 Mo. App. 70, 83, 135 S. W. 98; Partello v. Railroad, 217 Mo. 645, 655, 117 S. W. 1138; State v. Buchler, 103 Mo. 203, 207, 15 S. W. 331.

The testimony of Dr. Andruss that the blood he saw running from plaintiff's car had come from the inside of his skull was properly admitted. Defendant's contention that the doctor had not made an examination from which he could determine such a fact is not borne out by the record; the record shows the contrary. Dr. Thielman testified that plaintiff had suffered a gradual and progressive degeneration and weakening, both physical and mental. He...