Spaulding v. Metropolitan Street Railway Co.
| Decision Date | 17 February 1908 |
| Parties | JOSEPH SPAULDING, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Halbert H. McCluer for appellant.
(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence. Roscoe v Railway, 202 Mo. 588; Spiro v. Transit Co., 102 Mo.App. 262; Jordan v. Transit Co., 202 Mo. 426; Grout v. Electric Co., 102 S.W. 1028; Haley v Transit Co., 179 Mo. 35; Klockenbrink v. Railroad, 81 Mo.App. 357; Railway v. Trego (Texas), 101 S.W. 256. (2) The court erred in giving plaintiff's instruction numbered 1. Orcutt v. Building Co., 201 Mo. 424; McGrath v. Railroad, 179 Mo. 97; Roscoe v. Railway, 202 Mo. 588, and cases cited. (3) The court erred in giving plaintiff's instruction numbered 2.
Jas. C. Rieger for respondent.
(1) The court committed no error in refusing defendant's instruction in the nature of a demurrer to the evidence. (2) If there is any substantial evidence at all to sustain plaintiff's petition a demurrer to the evidence should not be sustained. Ilges v. Transit Co., 102 Mo.App. 529; Mathew v. Railway, 115 Mo.App. 468; Gutridge v. Railway, 105 Mo. 520; Spohn v. Railway, 87 Mo. 84; Burger v. Railway, 112 Mo. 248; Campbell v. Railway, 175 Mo. 161. (3) It is well-settled law that the appellate court will not allow litigants to try appeal cases on a theory different from that on which they were tried in the lower court. Hamilton v. Railway, 123 Mo.App. 628, and cases cited. (4) The court committed no error in giving plaintiff's instruction numbered 1. This instruction is approved in Dougherty v. Railway, 97 Mo. 655, and upheld in Phippin v. Railway, 196 Mo. 321. (5) The court committed no error in giving plaintiff's instruction numbered 2.
--Plaintiff was knocked off of one of defendant's street cable cars and alleges that he was severely injured, through the negligence of defendant's servants. He recovered judgment in the trial court.
As much of the contention between the parties arises on the petition we set out that part of it containing the charge of negligence: "That said plaintiff, while said car was standing still, undertook to board or enter, from the north, said grip car provided by defendant for passengers; that while in the act of entering and reaching a seat on said grip car, the gripman or motorman suddenly and without any notice or warning, applied the grip to the cable, when he knew or by the exercise of reasonable care and diligence, might have known that plaintiff was in the act of boarding said car and was in a position of imminent peril, and thereby suddenly put said car in quick motion before said plaintiff had the time or an opportunity to become seated, throwing plaintiff out of the approach to the seat, so that his body projected out beyond the side of said grip car; that thereupon this plaintiff was struck by a car approaching from the east and knocked to the ground; that the act of said gripman or motorman in handling and operating the car upon which plaintiff entered, in starting said car in the manner aforesaid before plaintiff had had the time and an opportunity to become seated, was carelessness and negligence on the part of defendant, and the act of the gripman and conductor in charge of and operating the said car, which approached from the east and struck plaintiff, knocking him to the ground, was also an act of carelessness and negligence on the part of said defendant, by reason of the fact that defendant's agents and servants saw or by the exercise of reasonable care could have seen plaintiff on the car approaching from the west, and that he was in a position of imminent peril, in time to have stopped its said car before striking him and given him the time and an opportunity to become seated and protected from being run upon and struck by its said west bound car; that by reason of said carelessness and negligence as above alleged, resulting in throwing plaintiff out of the car he had attempted to board and become a passenger on and in knocking plaintiff from said grip car to the ground, said plaintiff received and sustained severe and serious injuries to his body and nervous system, to-wit:"
The trial court concluded that there was no evidence of negligence on the part of the servants of the west-bound car which knocked plaintiff off the car he had boarded and so instructed the jury. The defendant insists that the only case stated in the petition is that made by the charge of negligence on the part of those in control of the west-bound car, that is to say, the humanitarian doctrine, and that when that was taken out, nothing was left. It is said that the negligent act of the servants in charge of the west-bound car was the proximate cause of the injury and that the allegation of a negligent act in the sudden starting of the east-bound car, causing plaintiff to swing out from the car "was merely the statement of the manner in which plaintiff was placed in a position of peril." Defendant says that a cause of action only arose if the gripman of the west-bound car discovered plaintiff's peril in time to have avoided striking him. Defendant further says if the act of placing one's self in a situation where he is injured by the negligent act of another could be said to be one of the producing causes of the injury, the injured party's act in putting himself in such position would prevent his recovery.
Defendant then states that the question in such cases is, was there an unbroken connection between the wrongful acts and the injury, or was there some new and independent cause intervening between the wrong and the injury? And further says that it cannot be said that one's negligence is the proximate cause of an injury if, notwithstanding such negligence, the injury could only have happened by independent intervening negligence.
In support of these suggestions defendant cites Grout v. Railway, 125 Mo.App. 552, Klockenbrink v. Railway, 81 Mo.App. 351 and Haley v. Transit Co., 179 Mo. 30, 77 S.W. 731. And in further support defendant makes the following quotation from San Antonio Railway Company v. Trigo, 101 S.W. 254 (Texas), viz:
"Where...
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