State v. Ellison

• Decision Date: 12 July 1920
• Docket Number: No. 21365.,21365.
• Citation: 224 S.W. 820
• Parties: STATE ex rel. METROPOLITAN ST. RY. CO. v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

224 S.W. 820

STATE ex rel. METROPOLITAN ST. RY. CO. v. ELLISON et al., Judges.

No. 21365.

Supreme Court of Missouri, in Banc.

July 12, 1920.

Motion for Rehearing Denied October 1, 1920.

Certiorari to Kansas City Court of Appeals.

Petition by the Metropolitan Street Railway Company against James Ellison and others, as Judges of the Kansas City Court of Appeals, for writ of certiorari to quash their opinion, in Quirk v. Metropolitan St. R. Co., 200 Mo. App. 593, 210 S. W. 106, on the ground of conflict. Writ quashed.

Relator seeks by writ of certiorari to quash the opinion of the Kansas City Court of Appeals in the case of Quirk v. Metropolitan Street Railway Co., 200 Mo. App. 593, 210 S. W. 106, on the ground that it conflicts with Padgitt v. Moll et al., 159 Mo. 143, 60 S. W. 121, 52 L. R. A. 854, 81 Am. St. Rep. 347, and Raming v. Metropolitan Street Railway Co., 157 Mo. 477, 57 S. W. 268.

That portion of the opinion of the Court of Appeals necessary to an understanding of the attack now made against it is as follows:

"Plaintiff recovered a verdict and judgment for loss of services, medical attention, and other damages suffered by him on account of an injury to his son, Charles Quirk. The latter, while attempting to get off of one of defendant's cars on July 4, 1910, fell from the front step thereof, his leg going under the car, causing the same to be cut off about six inches below the knee.

"The facts in this case are substantially the same as those in the case of Charles Quirk, by Next Friend, Maurice Quirk, v. Metropolitan Street Railway Co. (No. 13116) 209 S. W. 103, decided at this sitting, but not yet [officially] reported. The two cases are dissimilar, however, in some respects. Plaintiff in his petition in this case alleged that his minor son was on the front steps of the car, in a position of peril, which was known to defendant's servants, and that after seeing him in such a position they failed to stop said car. There is nothing said in the petition about the boy being ordered from the car, or that he was attempting to alight therefrom when he fell. Plaintiff thus plants himself squarely upon the last chance doctrine. Plaintiff's instructions followed the petition and submitted the same negligence as alleged therein. A number of points raised in this case were disposed of in the other, so it is unnecessary for us to go into those points a second time.

"Defendant urges that the evidence does not prove, but disproves, the allegation in the petition that plaintiff's son fell from the steps of the car, in that it proves that he fell, not by reason of the continued movement of the car, but in an attempt to alight therefrom.

"It is defendant's contention that there was no duty upon defendant's servants to stop the car merely because they saw plaintiff's son upon the steps, in the absence of any other showing that it was dangerous for plaintiff's son to be upon them, such as a showing that the car was swaying or jerking by reason of some defect of the track, etc.

"That the humanitarian doctrine applies in cases where the circumstances are like those present in the case at bar is well established. See Drogmund v. Met., 122 Mo. App. 154, 98 S. W. 1091. It was not necessary for plaintiff to show anything more than that his son was upon the steps and that he was a boy of tender years, to wit, seven years of age, and that the car was moving at the rate of from seven to ten miles per hour, to permit him to go to the jury on the question that his son was in a position of peril, such as upon discovery by defendant's servants require them to stop the car, or to take the boy back on the car out of danger. Levin v. Traction Co., 194 Pa. 156, 45 Atl. 134; Wynn v. City & Suburban Ry., 91 Ga. 344, loc. cit. 352, 17 S. E. 649; Goldstein v. People's Railway, 5 Pennewill (Del.) 306, 60 Atl. 975. In fact, it seems apparent to us that a child of seven years of age, on the steps of a car moving at the rate of from seven to ten miles per hour, is in a position of peril. The evidence shows not only these facts, but further established the fact that he had been ordered off the car by the conductor, and was on the steps for the purpose of obeying such an order, all of which was known by the motorman. The motorman was guilty of negligence in failing to protect the child under the circumstances. But plaintiff was not under the necessity of proving these additional facts. He made out a case under the petition by showing that defendant's servant saw plaintiff's son upon the steps under the circumstances, and this even though plaintiff's son had not been ordered off the car. The petition does not allege that the boy was on the step attempting to alight, from the car, but alleged, generally, that he was on the step in a position of peril. Under such an allegation it was competent to prove that he was attempting to alight as an incident of his being on the step. The fact that the evidence shows that plaintiff's son was attempting to alight at the same time he was on the step would not change the cause of action for the reason given. If the car had been stopped, plaintiff's son...