Tillery v. Harvey

• Decision Date: 26 May 1919
• Docket Number: No. 13251.,13251.
• Parties: TILLERY v. HARVEY et al.
• Court: Missouri Court of Appeals

214 S.W. 246

TILLERY v. HARVEY et al.

No. 13251.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published.

Action by Woodson H. Tillery against Ford F. Harvey and Robert J. Dunham, receivers of the Metropolitan Street Railway Company, and the Kansas City Railways Company. From a judgment for plaintiff, defendants appeal. Affirmed.

R. J. Higgins, of Kansas City, Kan., and Roscoe P. Conkling, Charles L. Carr, and Clyde Taylor, all of Kansas City, Mo., for appellants. "

Strother & Campbell and Ingraham, Guthrie & Durham, all of Kansas City, Mo., for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of 8500 for personal injuries sustained by him on March 14, 1916, as the result of a fall in alighting from one of defendants' street cars, on which he was a passenger. The accident happened at Fifteenth street and Elmwood avenue, in Kansas City, Mo. It was dark, about 8 p. m. Plaintiff was on his way home, carrying a basket containing eleven dozen eggs. When the car approached the usual stopping place at Elmwood avenue, plaintiff went to the front of the car and said to the motorman, "Elmwood, please," and the motorman replied, "All right." When it reached the usual stopping place at Elmwood avenue, the car slowed so that its movement was, as one witness described it, "just moving and that was all." At this period the motorman, who controlled the movement of the front vestibule doors which were closed, opened the doors for plaintiff to alight. Plaintiff thought the car had stopped, and in stepping to the street he was caused to fall by the continued movement of the car, breaking his eggs and sustaining personal injuries. When the car came to a full stop, it had proceeded about 10 feet from the place where plaintiff had stepped from it. It was shown that it was the custom, of which plaintiff was aware, for the motorman not to open the doors to permit passengers to alight until the car had come to a full stop. Plaintiff relied upon this custom, and, as already stated, he thought the car had stopped at the time he alighted.

The alleged negligence alleged in the petition was the custom aforesaid, and that defendants' servants "permitted said door to be open for the purpose of allowing plaintiff to alight from said car * * * when they knew or * * * could have known that plaintiff was about to alight from said car and was unaware that said car was still in motion and that plaintiff was in a position of peril by reason thereof." The answer was a general denial and an allegation that plaintiff's injury was caused by plaintiff's failure to observe the car in motion, if it was in motion; that fact being denied.

On cross-examination of plaintiff, defendants brought out that, if plaintiff had looked out into the street for the purpose of determining whether the car was in motion, he probably could have discovered that it was, in that plaintiff would have been able to compare the stationary street and things thereon with the position of the car and thereby have determined that the car was moving. It is the contention of defendants that the proximate cause of the injury was not the act of the motorman in opening the car doors before the car came to a stop, but plaintiff's getting off a moving car without exercising ordinary care, and that plaintiff was guilty of contributory negligence under the circumstances as a matter of law.

It was shown that there was a large arc light near at hand at the time the car stopped. Plaintiff testified that this light had the effect of blinding him, and that he could not see out of the car well, but that he was able to see the sidewalk on the street running up Elmwood avenue, in an effort to determine whether the car had stopped at the usual stopping place. He said that he did not look to see whether or not the car stopped; that

"I might possibly have noticed, but I was so positive that it was stopped because they never did open the doors before, and I just walked right down."

When asked if he made any effort to determine whether the car was standing, he answered:

"No, sir; I walked right out when he opened the door, and I supposed, of course, the car was stopped."

He testified that if he had looked at any object along the street, such as a post, he might possibly have determined that the car was moving, but that he did not look.

Plaintiff had a right to rely upon the custom shown in evidence, that is, for the motorman not to open the exit doors for passengers to alight until the car was brought to a full stop. Percell v. Rd., 126 Mo. App. 43, 103 S. W. 115; Harrington v. Dunham et al., 273 Mo. 414, loc. cit. 424, 202 S. W. 1066. If the motorman opened the exit doors, his action could not have been construed in any other light than as a direction for passengers to alight then and there. Plaintiff, in the absence of anything to the contrary, had a right to conclude that the car had stopped for the purpose of permitting him to alight at that place. McGee v. Mo. Pae. Ry. Co., 92 Mo. 208, loc. cit. 218, 4 S. W. 739, 1 Am. St. Rep. 706; Hufford v. Met., 130 Mo. App. 638, loc. cit. 643, 109 S. W. 1062.

It is apparent that plaintiff was relying implicitly upon the duty of the motorman not to open the exit doors until the car was brought to a stop, and that plaintiff had his attention more on whether the car was stopping at the usual stopping place as he locked up Elmwood avenue and saw the sidewalk. Whether plaintiff should have taken any greater precaution to determine whether the car had come to a full stop was a question for the jury to decide. Defendants were under the duty to exercise the highest degree of care to provide for plaintiff's safety. We cannot say as a matter of law that plaintiff did not have the right to rely entirely upon the motorman discharging his duty under the circumstances.

Defendants complain of plaintiff's instruction No. P-1. This instruction, among other things, told the jury that if it was the custom of defendants "not to open the said door for the purpose of allowing passengers to alight from said car until said car is brought to a standstill at the said stopping place, and that plaintiff knew and relied upon said custom," and the "motorman negligently opened said door before stopping said car and negligently failed to stop said car before opening the same and negligently allowed said car after the door was so opened * * * to proceed slowly forward, that plaintiff was unaware of the forward movement," and that plaintiff, "relying upon the said custom, * * * did, with the knowledge of defendant's said servant, step off of said car * * * while said car was so moving," etc., their verdict should be for the plaintiff.

It is defendants' contention that the only ground of negligence alleged was a violation of defendants' custom of not opening the doors of the car to permit passengers to alight until the car had come to a stop, while the instruction submits alleged negligence in allowing the car to proceed after the doors were open; it being contended that a negligent failure to stop was not pleaded. This is a mere play upon words. It is apparent that the instruction follows the allegations of the petition.

There is complaint of plaintiff's instruction No. 2, it being claimed that it states an abstract proposition of law, that specific acts of negligence are charged, and that the instruction permits the jury to...