Smith v. Kansas City Public Service Co.

• Decision Date: 06 February 1933
• Parties: MABLE SMITH, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE CO., APPELLANT
• Court: Kansas Court of Appeals

56 S.W.2d 838

227 Mo.App. 675

MABLE SMITH, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE CO., APPELLANT

Court of Appeals of Missouri, Kansas City

February 6, 1933

Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

Reversed and remanded.

James R. Sullivan and Chas. N. Sadler for respondent.

Watson Ess, Groner, Barnett & Whittaker for appellant.

OPINION

BLAND J.

--This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3500 and defendant has appealed.

The facts show that on the 8th day of January, 1929, plaintiff was alighting from one of the street cars of defendant when she slipped on the icy step of the car causing her to fall, to her injury. Plaintiff, her brother and her husband had attended a theatre in the downtown district of Kansas City. At about eleven P. M. on the day in question at 12th and McGee Streets, in said city, they boarded the street car in question and became passengers thereon intending to go home. When the party reached 38th and Summit Streets plaintiff signaled to the operator of the car to stop so that they might alight. It was at this point that she fell. The fall occurred about eighteen to thirty minutes after they boarded the car.

The car in question is what is called a "one man" car. The operator acts both as motorman and as conductor. He stands in the front vestibule of the car, collects fares, opens and closes the outside vestibule doors and looks, generally, after the operation of the car. The passengers board and alight from the front vestibule where the operator is situated. The front vestibule is divided by horizontal and vertical iron rods separating the space so that passengers intending to board the car go in front of the rods and those intending to alight go between the body of the car proper and the rods. However, passengers frequently board and leave the car indiscriminately through its entrance and exit-ways. The outside opening of the vestibule is covered by a set of folding doors, the opening and closing of which is controlled by the operator of the car with the aid of compressed air. When the doors are closed the step, which runs along the entire width of the opening, is folded up against the car.

The evidence shows that no snow fell on the day in question but that there was snow upon the ground; that there had been thawing temperature during the day and the streets were "sloppy through the middle of the day." It started to freeze after night came on.

Plaintiff's brother, Prather, did not testify. Her husband testified to the effect that he did not pay any attention to whether there was ice upon he step when they boarded the car. Plaintiff testified that she did not notice any. However, when plaintiff fell her husband noticed that the step was "covered with slick ice." Her foot slipped from under her and the back of her head struck the step. She was assisted to her feet by her husband and Prather, who saw her fall. There was testimony that "numerous" people boarded the car and others alighted therefrom during the eighteen to thirty minutes that transpired prior to plaintiff's fall.

The car was taken out of the barn by the operator at 4:40 P. M. and he returned it at 1:45 A. M. the next morning. He was put upon the stand by the defendant but was not asked as to the condition of the step. He testified that plaintiff did not fall upon the step but alighted therefrom, took one step and was taking another when she slipped upon the snow or ice on the street and fell; that there was nothing to obstruct his view and that he watched her from the time she came out of the car into the vestibule until she fell. The operator of the car upon cross-examination was very positive that he saw the entire happening. He also gave testimony in this connection which would indicate that he saw the step of this car each time a passenger alighted. This testimony is as follows:

"Q. (By Mr. Sadler) Is it your habit and practice as you go along downtown to watch everybody that gets off at the exit-way and see whether they take hold with their hand or not when they get off? A. Well, I watch them as they get off.

"Q. Isn't it a fact that when you open the door and you know that there is some people to get off that you don't pay any attention to them, you just watch to see when they get off? A. No.

"Q. You watch each person to see how they get off, do you? A. I watch their step as they come down.

"Q. You watch their step as they come down? A. Yes.

"Q. And you watch to see whether or not they take hold of anything, or not, each person that gets off of your car. That is correct, is it? A. Well, I wouldn't say that I watched to see they took hold every time particular.

"Q. Why, of course you don't. There wouldn't be any reason for watching that, would there? A. I watch their feet.

"Q. You watch their feet? A. Just by looking at them you can observe the whole thing as they step down.

"Q. From your position you can't see their feet unless you turn clear around, can you? A. Why, no.

"Q. You mean to tell the jury when you stop to let people get off of the car that you turn clear around and watch those people's feet as they get off? A. Why, I certainly do.

"Q. You want the jury to understand you do that all of the time? A. I absolutely do. I turn around and watch the people."

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given for the reason that there is nothing in the record from which the jury could conclude that the defendant knew, or by the exercise of the highest degree of care, could have known of the icy condition of the step, in time to have remedied the situation. In fact, defendant claims that there is no testimony, or inference to be drawn from the testimony, that defendant or its agents had any knowledge whatever of the condition of the step prior to plaintiff's fall.

We think there is ample in the testimony from which the jury could have drawn the inference that defendant did have knowledge of said condition in time to have remedied it. Defendant admits that there is evidence showing that there existed a condition of a sheet of ice upon the entire step. Defendant's theory as to how the ice came upon the step is that it probably formed during the trip after plaintiff boarded the car and that it was caused by moisture being deposited on the step from the passengers' feet. For the purposes of the case we may accept defendant's theory concerning this matter. Plaintiff does not appear to seriously challenge defendant's contention that there was no ice upon the step prior to the time that plaintiff boarded the car, it being apparently conceded that, when plaintiff said she did not notice any ice upon the step at that time, she meant that she looked and saw none, rather than that she took no note of the situation.

However, it took some appreciable length of time for passengers to track moisture upon the step and for it to freeze. That it was not frozen lightly on the step is manifest from the fact that it adhered to the step after the latter was folded up and during the process of folding and unfolding. Defendant and its agent, the operator of the car, were required to use the highest degree of care in order to prevent this condition remaining, if they could not have prevented it in the first place. They must be held to have anticipated just what occurred in this instance, the tracking of moisture and its freezing upon the step. [Bate v. Harvey, 195 S.W. 571.] In fact the operator of the car testified:

"Q. Now, when people get on and off a step when there is wet snow on the ground you have seen them track snow up on, stick on the steps, haven't you? A. Yes."

The operator of the car is charged with knowledge of the fact that moisture will freeze in freezing temperature.

Defendant insists that the operator of the car did not testify that he could see the step of the car from where he was located; that he meant to say that he merely saw passengers in the act of stepping as they alighted from the car. While the operator of the car did not say, in so many words, that he saw the step as passengers alighted, he did say that he observed passengers when they were alighting; that he watched their feet and observed "the whole thing as they stepped down." The jury from this testimony, could well arrive at the conclusion that he did see the step on these occasions and that he saw it as each of the many passengers alighted during the course of the trip in question. The jury, as reasonable men, could also arrive at the conclusion that the moisture did not get upon the step and freeze tightly there in merely a few seconds of time, but that it required sometime for this condition to be brought about and that the operator of the car must have seen the ice upon the step when some of the other passengers boarded the car or alighted from it. The jury could also find that it would have required but an instant of time on the part of the operator, after he discovered the condition, to have remedied it. [Craig v. United Rys., 175 Mo.App. 616, 625, 626, 158 S.W. 390; Bate v. Harvey, supra; Taylor v. Mo. P., 311 Mo. 604, 617, 618, 279 S.W. 115.]

There is another very potent circumstance which was for the attention of the jury in connection with this matter though no doubt, the jury could not have fixed liability upon the defendant on account of this circumstance, alone. The operator of the car is presumed to have been under defendant's control. He was its employee and it placed him upon the stand but failed to inquire of the witness whether he observed any ice upon the step at any time. This was an important factor in the case and we would expect to have found that d...