Schwanenfeldt v. Metropolitan St. Ry. Co.
| Citation | 174 S.W. 143,187 Mo.App. 588 |
| Parties | LOUIS SCHWANENFELDT, Respondent, v. METROPOLITAN STREET RY. CO., Appellant |
| Decision Date | 01 March 1915 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. Wm. O. Thomas, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Chas. N. Sadler for appellant.
J. H McVay for respondent.
--Suit by a husband for loss of his wife's services and for medical expense resulting from injuries alleged to have been inflicted upon her by defendant's negligence. The wife, in company with a number of women friends, was a passenger on a street car. Upon its stopping at the place where they desired to alight, the women arose and stepped into the aisle on their way to the door. At this moment the car, without warning, suddenly moved forward with a jerk throwing plaintiff's wife, a heavy, middle aged woman, headlong to the floor.
A trial resulted in a verdict and judgment for plaintiff, and defendant has appealed.
It is first urged that there is no proof that the car in question belonged to defendant's system. The point is without merit. The case was tried by both sides on the theory that there was no issue as to the ownership of the car. Defendant placed the conductor of the car on the stand, and his testimony clearly shows it was one of defendant's cars. The evidence as to the method of reporting and attending to accidents and their investigation by defendant, and of this one in particular, shows that the ownership of the car was conceded.
It is next claimed that there is no evidence of negligence. We cannot agree to this. The petition alleged general not specific negligence and that injury thereby resulted to plaintiff's wife, a passenger. The facts, as disclosed by the evidence, are that the wife was a passenger; that the car stopped at its usual stopping place to let off passengers; that the wife promptly arose and stepped into the aisle while the car was motionless; that suddenly, without warning, and without apparent reason therefor, it started forward with a jerk and stopped again; and that this jerk threw the wife to the floor upon her back. Under these circumstances, the cause of the jerk was one of the things likely to be within the knowledge of the defendant, and wholly unknown to the passenger. And, since the petition alleged negligence generally, the presentation of the facts made a prima-facie case, and it devolved upon defendant to show that what happened occurred through no fault of its own. The movement of the car under the circumstances was not an incident to the necessary and careful operation thereof. It could not have occurred except through some defect in the appliances or some omission or neglect of duty on the part of the operators of the car. There was no evidence to contradict this, and a presumption of negligence, therefore, arose and remained in force. [Hite v. Metropolitan St. Ry. Co., 130 Mo. 132, l. c. 137; Bartley v. Met. St. Ry. Co., 148 Mo. 124, 49 S.W. 840; Roscoe v. Met. St. Ry. Co., 202 Mo. 576, 101 S.W. 32.] The car being at a standstill when the jerk occurred, it cannot be said to be a part of the usual and ordinary operation of the train as in cases like Hedrick v. Missouri Pacific Ry. Co., 195 Mo. 104, 93 S.W. 268.
We are at a loss to know wherein the evidence shows any contributory negligence upon the part of the plaintiff's wife. She did not get up from her seat until after the car stopped. The car had reached its regular stopping place and where the wife desired to alight. She arose promptly and was in the aisle where she had a right to assume that it would not start until the nine passengers in her little party had alighted. Being taken thus suddenly unawares, her feet were jerked from under her throwing her heavily to the floor. Nothing she did or omitted to do in any way contributed to her fall, so that we are at a loss to know where there is any room for the charge of negligence against her. Certainly no want of ordinary care on her part is disclosed by the evidence which would warrant us in finding contributory negligence as a matter of law.
Plaintiff's instruction number 7 cannot be held erroneous because it failed to define the word "passenger." Under the circumstances of this case the word needed no definition. Plaintiff's wife was in the car, having ridden from the Union Station to Grand avenue and had not severed that relationship when the accident occurred. If there had been any contention over whether plaintiff's wife had attained the status of a passenger then, of course, the jury should have been told what fact would create that relationship. And this was the situation in Nolan v. Metropolitan St. Ry., 250 Mo. 602, 157 S.W. 637. But there is no room on the facts of the case at bar for the application of the rule announced in that decision.
Nor is the instruction erroneous or inapplicable to the evidence because it submits the question of the forward movement of the car "while plaintiff's wife was in the act of leaving said car." She was "in the act of leaving the car" from the time she arose from her seat for that purpose, and she was thrown down while in the aisle still "in the act of leaving the car." The objection is wholly without merit.
So also is the criticism that the instruction blames the conductor as well as the motorman. It merely submits to the jury the question whether the conductor or motorman, or both, knew or should have known that plaintiff's wife was about to leave the car, and then submitted the question whether the sudden start and jerk of the car was due to "the negligence of defendant's servants and employees in charge of said car."
Nor does the instruction broaden the issues because it used the words "without any warning" after the words "sudden start or jerk forward." The words brought nothing into the case outside of what is necessarily implied in the charge contained in the petition. It would seem that if they had any outside effect whatever it would be to lay a heavier burden upon plaintiff than he was otherwise required to prove, namely, that defendant failed to give warning, before he could recover. But these two words made no change in the issues before the jury.
The objections to instructions 8 and 9 are equally without merit. What is said concerning instruction 7 answers the objections to number 8.
As to instruction number 9, on the measure of the husband's damages, no complaint is made as to various elements of loss for which plaintiff could recover. The objection seems to be that there is a distinction between loss of "services" and loss of the "society, aid, and comfort" of the wife when the term "loss...
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