Teske v. Kansas City Rys. Co.

• Decision Date: 10 June 1918
• Docket Number: No. 12905.,12905.
• Citation: 204 S.W. 577
• Parties: TESKE v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

204 S.W. 577

TESKE v. KANSAS CITY RYS. CO.

No. 12905.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

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

"Not to be officially published."

Action by Margaret Teske against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clyde Taylor, Mont T. Prewitt, and Charles A. Stratton, all of Kansas City, for appellant. Harry G. Kyle, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff's husband, in alighting from a street car, fell or was thrown to the pavement, and his skull was crushed so that he died. She brought this suit for damages, alleging his death was the result of negligence on the part of the carrier. The jury returned a verdict of $3,000 in plaintiff's favor, upon which judgment was rendered, and defendant appealed.

The petition alleged that plaintiff's husband, as a passenger, was standing in the rear vestibule near the step of said car holding to the brace or post thereof "until he reached a point at or near Fifteenth street and Troost avenue, at a point within a few feet, about 30 feet, of where said car and other cars on said line are required to stop and receive and discharge passengers," and that, "while plaintiff was standing in said position, the car approached said point and stopped, and Plaintiff's husband stepped from the vestibule where he was standing with one foot down on the step of said car to get off of said car," and "while in this position, in attempting to get off of said car, the said car suddenly and violently started wth an unusual jerk which violently threw plaintiff's husband to the pavement." The negligence upon which the case was submitted was in "carelessly and negligently starting said car at said time and at said place with an unusual, sudden, and violent jerk while plaintiff's said husband was attempting to alight therefrom."

There was at Fifteenth and Troost, not only an intersection of streets, but also an intersection of railway lines, and on this account all cars stopped without signal at said intersection and before crossing. This is not in dispute, but is conceded.

The evidence in plaintiff's behalf was to the effect that the car, on approaching the intersection at Fifteenth and Troost, stopped at a point about 30 feet before reaching the regular stopping place; that plaintiff's husband got from where he was standing as alleged in the petition down upon the car step and was in the act of alighting when the conductor, who was standing near him in the rear vestibule and looking at him, gave the signal to start, and the car jerked forward, throwing him to the rear and to the pavement on his head.

The defendant's evidence was that the car had not yet stopped but had merely slowed down preparatory to stop, "very nearly stopped," when plaintiff's husband got down on the step and stepped off while the car was still in motion, and was thereby thrown down and injured. The conductor, testifying for defendant, said he saw deceased do this and saw him go from the point of his standing position in the vestibule to the step and saw him step off, and that he was thrown down in stepping off. The conductor also testified that the deceased fell at a point 30 or 35 feet before the regular stopping place was reached. There was therefore practically no dispute over the place where the deceased fell, nor was there any dispute over the fact that the conductor saw deceased get upon the step, attempt to get off, and fall. The question in dispute was whether the car stopped. If it did stop, then unquestionably the conductor knew deceased was attempting to alight at that point, and was not merely getting ready to alight when and after the car had carried him 30 feet farther on,

With the foregoing state of the evidence in mind, we are now ready to consider defendant's contentious as to errors.

The first is that there was a failure of proof under the petition. The claim is that the petition charges that the car stopped at or near or within a few feet of the regular stopping place (which would require that the car be held still long enough to permit a passenger to safely alight, rendering unnecessary any allegation that the operatives of the car knew he was getting off), but that the proof showed that the car, if it stopped at all, did not stop "at or near or within a few feet of" the regular stopping place, but before that point was reached, and therefore, in the absence of an allegation that the car stopped to let off passengers or that the operatives knew deceased was in the act of getting off, plaintiff's proof did not correspond with the cause of action pleaded.

But the petition, while it does show that the car did not stop at the exact spot of the usual and regular stop to discharge passengers, alleges that it traveled to a point at or near the intersection and approached "a point within a few feet, about 30 feet," of the regular stopping place, where it stopped, and plaintiff's husband...