Showen v. Metropolitan Street Railway Company
| Decision Date | 27 May 1912 |
| Citation | 148 S.W. 135,164 Mo.App. 41 |
| Parties | JOHN A. SHOWEN, Administrator of the Estate of CYRUS C. ARMSTRONG, Deceased, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John H Lucas and Boyle & Hogsett for appellant.
(1) The cause of action was not shown to have been one which could survive the death of the original plaintiff, Armstrong. Elliott v. Kansas City, 210 Mo. 576; Millar v Transit Co., 216 Mo. 99, 104; Behen v. Transit Co., 186 Mo. 430, 445; Bates v. Sylvester, 205 Mo. 493; R. S. 1909, Sec. 106; Vawter v. Railroad, 84 Mo. 679; Oates v. Railroad, 104 Mo. 514; Strottman v. Railroad, 211 Mo. 227. (2) The defendant's demurrer to plaintiff's evidence, which was also renewed at the close of all of the evidence, should have been sustained. Scroggins v. Railroad, 138 Mo.App. 215; Gurley v. Railroad, 104 Mo. 233; Nugent v. Milling Co., 131 Mo. 253; De Maet v Storage Co., 121 Mo.App. 104; Stafford v. Adams, 113 Mo.App. 721; Barnard v. Railroad, 137 Mo.App. 684. (3) The court erred in admitting the transcript of the stenographer's notes of Armstrong's former testimony. Byrd v. Hartman, 70 Mo.App. 57; Dempsey v. Lawson, 76 Mo.App. 522; Sevier v. Allen, 80 Mo.App. 187; Craig v. Scudder, 98 Mo. 664.
E. E. Aleshire, John S. Showen and R. S. Robertson for respondent.
On March, 6, 1908, Cyrus C. Armstrong commenced this suit in the circuit court of Jackson county to recover damages for personal injuries he alleged were caused by the negligence of defendant. The injury occurred October 16, 1907, and the petition alleged that it was caused by the negligence of defendant in suddenly starting a street car which had been stopped at a regular place for the reception and discharge of passengers while the plaintiff was in the act of alighting. The answer was a general denial. There was a trial of the cause in March, 1909, at which plaintiff appeared both as a party and as a witness. For some reason, not important now, that trial did not result in a judgment and the cause was set for retrial. On August 25, 1909, while the cause was pending the plaintiff died and on the 25th day of September following the court entered an order reviving the cause in the name of the administrator of his estate and thereafter the action was prosecuted by the administrator as plaintiff. An amended petition was filed by the administrator which repeated the allegations of the original petition respecting the cause of action and in addition alleged the facts of the death of Armstrong, the appointment of the administrator and his substitution as plaintiff. The amended petition contained no averment that the death of Armstrong did not result from the injury caused by the pleaded negligence. Defendant did not attack the amended petition by demurrer but filed an answer in the nature of a general traverse.
At the trial counsel for defendant objected to the introduction of any evidence on the ground "that the petition does not state a cause of action, because under the common law an action for personal injury did not survive the death of the injured party and because the statute under which this is sought to be revived only revives a certain class of cases and there is no plea or allegation in this petition that shows that the case falls within that class." The objection was overruled, defendant excepted and the court proceeded with the trial.
The principal evidence introduced by plaintiff was the testimony of Armstrong given at the former trial. Plaintiff introduced as a witness the official stenographer of the circuit court who reported that trial and he testified that he took the testimony in shorthand and had with him a transcript of his notes. He was interrogated by counsel for defendant as follows:
Plaintiff then attempted to have the witness testify from memory to the testimony given by Armstrong by using the transcript of his notes to refresh his memory, but this method of examination was not successful and over the objections of defendant the court finally permitted plaintiff to introduce the transcript in evidence. The ground of the objection thus was stated by counsel: "Because it is hearsay evidence and because there is no provision, either of the common law or of the statutes, authorizing the reading of such a transcript as the evidence of a witness and because it is incompetent, irrelevant and immaterial."
The facts of the injury as stated in the transcript thus may be stated: Mr. Armstrong, a Presbyterian minister living at Stanberry, was attending a synod at Kansas City and was on his way from a meeting of the synod to his lodgings at the time of his injury. He became a passenger on a southbound Rockhill car operated by defendant intending to alight at Thirty-fourth and Main streets, a regular stopping place. He was a stranger in Kansas City and was not familiar with its streets. He sat in a rear seat next to the vestibule where the conductor stood when not engaged in collecting fares and when the car stopped at Thirty-fourth street he asked the conductor who was in the vestibule if that was Thirty-fourth street and receiving an affirmative answer arose from his seat and proceeded to alight. He testified: "The door was ajar and I stepped to the doorway and across the vestibule and I had one foot on the step and the other extended to step to the pavement and the car lurched forward and threw me to the pavement." The car was headed south and Mr. Armstrong in going down the steps to the pavement was facing west. He states that he was not holding to a handhold and that the sudden motion of the car threw him in such manner that he fell to the pavement with his head to the west and his body extended in an east and west direction.
The principal injury he sustained was a fracture of the ball and socket joint in the left hip. The evidence of defendant is to the effect that Armstrong came out of the car to the vestibule, proceeded down the steps and attempted to step to the pavement, all before the car had reached the stopping place and while it was running at a speed of three or four miles per hour.
The injury was very severe and plaintiff suffered pain and was lame from it to his death. He was in good health before the injury and thereafter his health seemed steadily to decline until he died.
The specific cause of his death is not shown but a very strong inference arises from the evidence that the injury was the cause. The opposite inference also might be drawn and the issue of the causal relation of the injury to the death appears from all the evidence as a question of fact. At the request of plaintiff the jury were instructed: ". . . that if you believe and find from the evidence that on the 16th day of October, 1907, C. C. Armstrong, deceased, and former plaintiff in this case, was a passenger on one of defendant's cars proceeding southward on Main street in Kansas City, Missouri, and that said car stopped at a point on said Main street, for the purpose of allowing plaintiff to alight therefrom, and that said place was a point where defendant was accustomed to stopping its cars for the purpose of taking on and letting off passengers; that while said car was so stopped, the said C. C. Armstrong, deceased, started to alight therefrom, and while in the act of alighting from said car, and before he had reasonable time within which to alight, defendant, by its agents and servants, suddenly and without warning, started its said car forward, thereby throwing the said C. C. Armstrong, deceased, to the pavement and injuring him while the deceased was at the time in the exercise of ordinary care for his own safety, then your verdict will be for plaintiff.
"By 'ordinary care' as used in the above instruction is meant such care as an ordinarily prudent person would exercise under like circumstances."
The jury returned a verdict for plaintiff in the sum of five thousand dollars and after its motions for a new trial and in arrest of judgment were overruled, defendant appealed.
I. Under the common law an action for personal injuries did not survive the death of the injured plaintiff and both the cause and an action to enforce it abated on his death occurring before the cause had merged into a judgment. [Elliott v Kansas City, 210 Mo. 576, 109 S.W. 627; Millar v. Transit Co., 216 Mo. 99, 115 S.W. 521; Behen v. Transit Co., 186 Mo. 430, 85 S.W. 346; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73.] Therefore the right of the administrator to be substituted as plaintiff and to prosecute to judgment the action begun by his intestate if it exists at all, exists by virtue of some statute in derogation of the common law. It cannot be founded on section 105, Revised Statutes 1909, since the section following expressly excludes from the operation of that statute actions for injuries to the person of...
To continue reading
Request your trial