Shafer v. Kansas City Rys. Co.

• Decision Date: 18 February 1918
• Docket Number: No. 12693.,12693.
• Parties: SHAFER v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

201 S.W. 611

SHAFER v. KANSAS CITY RYS. CO.

No. 12693.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by Elizabeth Shafer against the Metropolitan Street Railway Company and its receivers, wherein by stipulation the Kansas City Railways Company, their successor, was substituted as defendant. From the judgment rendered, defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, for appellant. Guthrie, Gamble & Street, of Kansas City, for respondent.

TRIMBLE, J.

This case was here upon a former appeal. Shafer v. Harvey et al., Receivers of the Metropolitan Street Railway Company, 192 Mo. App. 502, 183 S. W. 670. After the remand therein ordered, an amended petition was filed and, by stipulation, the Kansas City Railways Company, successor to the Metropolitan and its receivers, was substituted as defendant, with an agreement that if there was any responsibility on the part of the former defendants that responsibility is now the responsibility of the present defendant.

The amended petition charged that plaintiff boarded a street car at Ninth and Kensington streets in Kansas City and became a passenger thereon, and "while such passenger and immediately upon entering such vehicle as such passenger, while in the act of becoming seated" the operatives "started said car negligently, suddenly, and violently and with a great, sudden, and violent jerk so as to throw the plaintiff down with great force and violence," etc. The petition further charged that as a direct result thereof— "the back, spine, and ribs and all of the internal organs of plaintiff were seriously injured, and the body and limbs of the plaintiff severely bruised and wounded, causing the plaintiff great pain in body and mind, and impairing the strength, activity, and vitality of the plaintiff; and as a direct result of the said negligence * * * and of the injuries hereinbefore mentioned, and as a development and direct and natural result thereof, the plaintiff will, subsequent to the injuries aforesaid, suffer and has prior to the filing of this amended petition in fact suffered, in addition thereto as follows: A great shock and injury to her nerves and nervous system; a paralysis or loss of control of her left side; a swelling of the back and limbs; emaciation, wasting, and atrophy of the back, shoulders, arms, and hands; contraction, drawing in, and hardening of the muscles and cords of the arms, hands, and fingers and to such extent in the left hand as to abrade and injure the muscles of the inner surface of the hand through the contraction of the fingers and produce sores and threaten blood poisoning and the life of the plaintiff, and producing bunches of contracted cords and muscles on the arms of the plaintiff; producing a growth of excessive, unhealthy, and distressing flesh through such injuries and the confinement and sedentary life forced upon the plaintiff thereby; producing unnatural, unhealthy, irregular, and distressing actions of the internal organs and the functions thereof, particularly the bowels and kidneys; causing the plaintiff to be morose, irritable, unhappy, and to distress herself and her associates; impairing the ability of the plaintiff to move about, perform, or enjoy any physical activities or get out of the house for contact or intercourse with or observations of matters."'

Plaintiff, one of a company of eight or ten, boarded the car at its usual stopping place and while she was in the act of seating herself the car started with a jerk and threw plaintiff down. The point at which she was in the act of seating herself was six or eight feet from the rear vestibule, the floor of which was some six inches lower than the floor of the car. When plaintiff ceased falling she was lying on her side on said rear vestibule floor. There is no question but that the car started and that the plaintiff fell. The dispute was over the character of the start, the cause of plaintiff's fall, the nature and extent of her injuries, and the cause of the subsequent conditions alleged to have arisen as a natural result of her fall and injuries.

It is claimed that defendant's demurrer to the evidence should have been sustained. This contention proceeds upon the theory that the start was only the usual and ordinary movement necessary to put the car in motion, and that plaintiff did not seat herself as soon as she should have done, but stopped to gather her cloak about her and, in doing this lost her balance and staggered to the rear endeavoring to recover it when she finally fell in the vestibule. But a number of witnesses testified that it was a very sudden, quick, and unusual jerk, "an extra hard jerk," "much more severe than usual," "a sudden strong jerk." A passenger who was sitting on one of the lengthwise seats was thrown over on the seat, and plaintiff's son, who had not yet gotten into the car, but was in the vestibule paying the fare of those who had just preceded him on said car, which was of the "pay-as-you-enter" variety, "was thrown with very violent force against the rear end of the car." There was therefore abundant testimony from which the jury could find that there was negligence, not only with respect to the violence of the start, but also in regard to the time at which that character of a start was made. The petition charges that immediately upon entering as a passenger and while in the act of becoming seated the car was negligently started with a great, sudden, and violent jerk. Barth v. Kansas City Elevated Railway Co., 142 Mo. 535, 550, 44 S. W. 778; Miller v. Metropolitan St. Ry. Co., 125 Mo. App. 414, 102 S. W. 592; Klass v. Metropolitan St. Ry. Co., 169 Mo. App. 617, 155 S. W. 57. The evidence in plaintiff's behalf nowhere discloses that she became unbalanced by reason of a proper and ordinary start of the car, nor does it show that she delayed sitting down or stopped in her movements in order to gather her cloak about her. Under the evidence, she went into the car and advanced about six or eight feet to where her husband had taken his seat and was in the act of seating herself beside him when she was thrown down by a violent jerk of the car made before a reasonable time had elapsed for her to become seated. The evidence on plaintiff's side shows that some of the party secured seats before plaintiff did, but it does not conclusively show that plaintiff was the first to get on, as appellant seems to think. Indeed, there is evidence tending to show that plaintiff's husband and others got on before she did ; and while some who immediately followed her into the car took the first seat they came to (the lengthwise seat on the south side of the car), and were seated at the time she fell, nevertheless' this does not show an unreasonable delay on her part, nor indeed any delay. The claim that plaintiff was guilty of contributory negligence as a matter of law because she did not seat herself at the very first opportunity, but passed on to where her husband was, cannot be upheld. To do so would be to say that plaintiff should have anticipated that the car was going to be violently started and ought, for that reason, to have scurried into the very first seat she came to.

Complaint is made of alleged errors in propounding a hypothetical question to plaintiff's physician. It is said that such question did not embrace the facts as shown by the evidence, and did embrace facts which the court had stricken out as not proper evidence. With respect to the objection that the question did not embrace the facts, counsel was asked to indicate in a general way what facts were omitted, but refused to do so, saying his objection was specific enough. It is held that such method of making an objection is unavailing. Besides, we have not, even now, been favored with a specification of what facts were omitted. As' to the complaint that the question embraced facts which the court had stricken from the evidence, the doctor had testified that when he first examined plainti...