Roscoe v. Metropolitan St. Ry. Co.

• Decision Date: 28 March 1907
• Citation: 202 Mo. 576,101 S.W. 32
• Parties: ROSCOE v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

101 S.W. 32

202 Mo. 576

ROSCOE v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 28, 1907.

1. CARRIERS — INJURIES TO PASSENGER — ACTION — ISSUES.

In an action for injuries to a passenger, where the petition contains a general allegation of negligence, and alleges specifically the failure of the defendant's employés to stop a train before beginning the descent of an incline where the accident occurred, in not providing suitable means nor exercising reasonable care in the use of those furnished, in the failure of the employés to be at their proper posts of duty, and in causing one train to follow another down the incline, there is no presumption of negligence from the accident, but the specific allegations must be proved.

2. SAME — QUESTIONS FOR JURY.

In an action for injuries to a passenger, where the petition alleged that the employés of defendant, in violation of a rule of the company and of ordinances of the city, failed to stop a cable train before it began the descent of an incline, and the evidence showed oral instructions to the motormen, and that the grip was likely to be loosened from the cable just before reaching that point, the refusal of an instruction withdrawing from the consideration of the jury that allegation of negligence was proper.

3. SAME.

In an action for injuries to a passenger, an instruction that there is no evidence that defendant failed to provide proper means to hold the grip of the cable train firmly attached to the cable, and to stop the same when not attached thereto, was properly refused, where there was slight evidence of the first element of negligence named.

4. SAME.

In an action for injuries to a passenger, evidence held to present a question for the jury whether the servants of the defendant were negligent in not properly using the appliances for controlling the movement of the cable train.

5. SAME — EVIDENCE — SUFFICIENCY.

In an action for injuries to a passenger, evidence held insufficient to show that either the gripman or motorman of the cable train was not at his post of duty.

6. SAME — TRIAL — NONSUIT.

In an action for injuries to a passenger, where, at the close of plaintiff's case, there was evidence before the jury of the insufficiency of the appliances to stop the car on the incline where the accident occurred with the cable out of the grip, a nonsuit was properly refused.

7. EVIDENCE — OPINIONS — EXAMINATION OF EXPERTS.

In an action for injuries to a passenger, questions to medical experts as to what they would attribute the cause of pains and his inability to sleep, if prior to the accident he was free from pains in the head, was able to sleep well, and was normal in his health, and after a street car collision, sufficient to throw him out of the car and cause various bruises, he suffered from pains in the head and back, which he had not had prior to the occurrence, were not permissible, as they called for opinions on matters directly in issue.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Clinton M. Roscoe against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Frank G. Johnson, Willard P. Hall, and John H. Lucas, for appellant. Boyle, Guthrie & Smith, for respondent.

GRAVES, J.

Action for personal injuries to plaintiff, who was a passenger on one of defendant's street railroad trains. The accident in which plaintiff was injured occurred on August 22, 1902. In the lower court plaintiff had judgment for $10,000, whereupon defendant appealed to this court.

Defendant, at date of accident, operated a double-track cable railroad, known as the "Ninth Street Line," running from the eastern part of Kansas City, Mo., along Ninth street, to the Union Depot. The Union Depot was the western terminus of the line, and was at the bottom of a very steep incline on Ninth street. Defendant's trains consisted of two cars, one known as a "grip car," and the other as a "trailer." The grip car had a device known as a "grip," which extended down through the body of the car to a covered conduit in the street, in which conduit was a wire cable kept in continuous onward motion by power from a stationary power house. The grip was fitted with a clamp in which were removable dies, and could be tightly closed upon the cable so as to firmly attach it thereto, or could be opened so as to allow the cable to slip through. This device was worked with a lever by an operator known as a "gripman." When the grip was clamped tightly, the grip car moved onward with the cable; when it was opened, the car stopped from loss of motion, or could be quickly stopped at ordinary grades by the application of brakes. The trailer was propelled by being attached to the grip car. Ninth street at a point at or near Washington street ascended a slope of considerable grade to Penn street, which crossed it at right angles, and descended to Penn street, which was practically level for space of 28 feet. From the western edge of Penn street it began to descend, and descended at a grade of 10.65 per cent. to Jefferson street; and thence on down to Union Depot it descended a very steep grade of 18.6 per cent. over an elevated structure or incline.

Plaintiff, in his petition, alleges that he was a passenger on one of defendant's trains, which had partly descended the incline near Union Depot, when suddenly, and without warning, another train of defendant descended the incline behind the train which plaintiff was on with great speed and crashed into and wrecked plaintiff's train, throwing plaintiff onto the floor of the incline and against the uprights of the same, rolling him over, cutting, bruising, and wounding his hands, his left heel, the back part of his head, his left shoulder and arm, and his thighs, wrenching and twisting his left shoulder, cutting a gash over his right eye, cutting the joint of his left index finger to the bone, and cutting the flesh over the kneecap of his left leg. And he further alleges that, prior to the injuries aforesaid, he was a strong and healthy man, 41 years of age, and weighing 191 pounds, but that since said injuries he has suffered a loss of sensation in both legs and in the lower part of his body; that he could not walk without the aid of canes and crutches; that frequently he suffered from severe pains in the left side of his head, and because of them was unable to sleep at night; that his nervous system was impaired, and his health injured, in divers other ways; that he was engaged in the hotel brokerage business, or acted as agent between prospective buyers and sellers of various hotel properties, and prior to the injuries aforesaid had just built up a business that was yielding him an income of about $15,000 per year; that, because of his injuries aforesaid, he had been unable to give his personal attention to his business; and that the loss thereby was fully one-half of his income. He asked for judgment in the modest sum of $100,000.

Plaintiff's petition, for grounds of negligence and causes of his injuries, charges that his injuries were received in the following manner: "(1) Through the carelessness and negligence of the defendant, its servants, agents, and employés, in not stopping said other train so that the front end thereof should be cast off the center of Penn street, as was required by the rules of said company and the ordinances of the city of Kansas City, obligatory upon defendant, until duly signaled that no trains were ahead of said other train down such incline, and where said other train would not be in danger of running down on Ninth street on such incline until duly propelled forward by such connection with the cable as would have prevented such train from coming down such incline faster than the speed of the cable. (2) And in not providing proper, sufficient, and safe means to hold said other train firmly attached to said wire cable. (3) And to stop the same when not attached thereto. (4) And through the carelessness and negligence of the defendant, its servants, agents, and employés, in not propelling, handling, and using said devices and appliances as were furnished for such purpose. (5) And in not being at their proper and required posts of duty therefor. (6) And through the carelessness and negligence of the defendant, its agents, servants, and employés, in causing one cable train to follow another down said incline, before the train farthest down said incline had gotten to a place of safety, so that through such defects in such means and in the use thereof a following train would, when beyond control, injure the passengers in a preceding train."

It will be observed that plaintiff did not content himself with a general allegation of negligence, but pleads specifically the different negligent acts which caused or contributed to his injury. The answer was a general denial, to which was coupled a plea of contributory negligence. Reply was a general denial. Such were the issues.

Defendant alleges error upon the part of the trial court in giving instruction No. 1 for plaintiff, which instruction is as follows: "You are instructed that the defendant and its employés were bound to use that high degree of care which a reasonably prudent person in like business would exercise under the same circumstances, in providing proper brakes for stopping or reducing the speed of a train in case it got loose from the cable on a dangerous incline, and on the part of defendant's employé in charge of the grip in keeping the grip with which the car was held to the cable properly adjusted, if you find there was a proper adjustment, for the purpose of enabling the cable to be properly seized and held by such grip, and on the part of the defendant's conductor in being at his proper post of duty, if you find there was a proper post of duty, for the use of such appliances, either brakes or hooks, as were provided for stopping...