Sparks v. Harvey

• Citation: 214 S.W. 249
• Decision Date: 05 May 1919
• Docket Number: No. 13126.,13126.
• Parties: SPARKS v. HARVEY et al.
• Court: Court of Appeal of Missouri (US)

214 S.W. 249

SPARKS v. HARVEY et al.

No. 13126.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

"Not to be officially published."

Action by Minnie Sparks against Ford F. Harvey and another, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Clyde Taylor, of Kansas City, for appellants.

Goble & Alford, of Kansas City, for respondent.

BLAND, J.

This is an action for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,780, and defendants have appealed.

The facts show that at about 4 p. m., on January 25, 1916, plaintiff, a woman 33 years of age, was injured while attempting to board a west-bound Prospect car on Fifteenth street in Kansas City, Mo., which had stopped at the usual and customary stopping place near Oak street in said city. When the car stopped the conductor, standing in the vestibule, opened the rear doors, whereupon plaintiff attempted to get upon the car through the platform. The car was equipped with a folding step and doors. Plaintiff put her right foot on the step, took hold of the rod between the entrance and exit passageway with her right hand, put her left foot on the platform, and was just in the act of raising her right foot from the step to the platform (her right foot having been raised about three or four inches above the step) when the conductor started shutting the doors and step, causing the step to strike her right foot, knocking it up, and causing it to hit the edge of the step. Thereupon plaintiff lost her balance and fell backwards, striking her spine and elbow on the platform and her foot upon the step. She then rolled to the pavement on her abdomen and left side.

The court gave the following instruction on behalf of plaintiff, of which defendants complain:

"The court instructs the jury that if you find and believe from the evidence that on the 25th day of January, 1918, the Metropolitan Street Railway Company owned the car in question and that defendants were operating the same for the carriage of passengers for hire, and that defendants' servants were in charge thereof, and that said car was a car of the Prospect Line and was west-bound and stopped at a point at or near the intersection of Fifteenth and Oak streets, in Kansas City, Jackson county, Mo., for the purpose of receiving passengers, and that said point was a usual and customary stopping place for cars on that line to take on or discharge passengers, that within a reasonable time after said car stopped plaintiff attempted to board said car at the rear end thereof, while the same was standing, for the purpose of transportation, and with the intention of paying her fare thereon, and had one foot upon the platform of said car and was in a position of peril, and that defendants' servants in charge thereof knew or by the exercise of the highest practicable degree of care that careful, experienced, and skillful street `car operatives would exercise under the same or similar circumstances could have known of plaintiff's perilous position on said car, and if you further find from the evidence that while plaintiff was so on said car, if she was, and that before she had a reasonably sufficient time to reach a place of safety on said car, defendants' servants in charge thereof negligently caused, suffered, or permitted the step or door of said car to close on or against plaintiff's right foot or body, and thereby directly caused her to fall on the platform of said car and the street and sustain injuries, and if the jury further find and believe from the evidence that defendants' servants in charge of said car, while plaintiff was so on said car (if she was), failed in the foregoing respects to exercise such a high and practicable degree of care, and thereby directly caused, suffered, or permitted such closing of said step and door of said car, and in consequence thereof plaintiff was injured, and if the jury further find and believe from the evidence that plaintiff, while attempting to board said car, was exercising such care as a reasonably prudent and careful woman would exercise for her own safety under like circumstances, then your verdict should be for the plaintiff." (Italics ours.)

Defendants call our attention to the fact that one of the main issues in the case was whether plaintiff was injured by one of defendants' cars, and in this connection they complain that by the use of the words in the instruction "the car in question" the court assumed that there was a car upon which plaintiff was hurt. We think there is no merit in this contention. Defendants substantially concede that, had the instruction used the words "the car mentioned in evidence" as used in the instruction in the case of Devoy v. St. Louis Transit Co., 192 Mo. 197, loc. cit. 206, 91 S. W. 140, instead of "the car in question" as used in this instruction, the present instruction would not be subject to attack on the ground mentioned. We see no material difference in the two, but we concede that the point is a close one, and it would have been better had the court used the language of the Devoy instruction. However, the instruction tells the jury in other parts that —

"If you find and believe from the evidence that * * * plaintiff attempted to board said car at the rear thereof * * * and had one foot upon the platform of said car, * * * and if you further find and believe from the evidence that while plaintiff was on said car, if she was, * * * and if you further find and believe from the evidence that defendants' servants in charge of said car, while plaintiff was so on said car (if she was), * * * your verdict should be for the plaintiff."

The instruction clearly required the jury to find that plaintiff was on the car upon which she claimed that she was injured. It therefore certainly does not assume that plaintiff was hurt on one of defendants' cars. We think it is plain, reading the instruction as a whole, that the court did not assume that plaintiff fell from one of defendants' cars. Devoy v. Transit Co., supra; Warnke v. Rope Co., 186 Mo. App. 30, loc. cit. 43, 44, 45, 171 S. W. 643. Nor do we think that the instruction is so framed as to lead the jury to believe that it was the opinion of the trial judge that there was a car present, and that plaintiff fell from the same.

The petition alleged that plaintiff was injured by the negligence of the defendants through the "agents, servants or employs in charge of said car." The instruction told the jury that if they "further find and believe from the evidence that * * * defendants' servants in charge" of said car "negligently caused, suffered, or permitted the step or door to close on or against plaintiff's right foot or body," etc., they should find for the plaintiff. It is defendants' contention that the evidence shows that if any one was negligent it was the conductor, and that it was error to submit to the jury any supposed negligence of the motorman. We think there is no merit in this contention. The jury could not have been misled as to which one of defendants' servants the instruction referred, because there was no evidence or suggestion in the evidence that the motorman had anything to do with the accident. If anything, the instruction was less favorable to plaintiff than she was entitled to, because if it is to be construed as defendants contend, that is, that while it required the jury to find that the conductor was negligent, it also required them to find that the motorman was negligent, it had the jury find more than was necessary in order to return a verdict for plaintiff. The case in this respect is entirely unlike the case of Heinzle v. Railway, 182 Mo. 528, loc. cit. 549-559, 81 S. W. 848.

It is contended that the instruction does not limit plaintiff to boarding the car at the usual stopping place, but that the jury were authorized to find for her if she attempted to board the car elsewhere; that "the instruction requires the jury to find that the car stopped at the usual stopping place, but when it comes to the part that submits the question whether or not plaintiff attempted to board the car the instruction does not limit such attempt to the usual stopping place." This contention and the one that the instruction is ambiguous on account of it not explaining whether the words "for the purpose of transportation" referred to plaintiff or to the car are too critical for practical purposes.

Dr. Robinson was one of plaintiff's physicians. He was asked by plaintiff, "Did you learn from her that she had a street car accident?" Defendants objected to the question on the ground that it was immaterial, and the court overruled the objection. The witness answered, "Yes, sir." A physician may testify about the present symptoms of his patient, repeating the latter's statements ...