Vogts v. Kansas City Rys. Co.

• Decision Date: 26 June 1920
• Docket Number: No. 13658.,13658.
• Citation: 228 S.W. 526
• Parties: VOGTS v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

228 S.W. 526

VOGTS v. KANSAS CITY RYS. CO.

No. 13658.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Rehearing Denied October 7, 1920.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Herman H. Vogts against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., L. T. Dryden, of Independence, and E. E. Ball, of Kansas City, Mo., for appellant.

House, Manard, Allen & Johnson, of Kansas City, Mo., for respondent.

TRIMBLE, J.

This is an action for damages for personal injuries sustained by plaintiff being thrown from the step of a street car after he had gotten upon the same in the act of boarding the car for the purpose of becoming a passenger thereon. A trial resulted in a verdict and judgment for $5,000, and defendant has appealed.

The injury occurred at the intersection of Ninth and Wyoming streets in Kansas City, Mo.; the former street running east and west, and the latter north and south. Defendant's Fifth Street car line was operated upon double surface tracks on Ninth street at the place in question, under an elevated street railway track supported by iron poles placed alongside and in close proximity to the surface tracks. The west-bound cars on the surface, or Fifth Street, line on Ninth ran on the north one of the double tracks, and the east-bound cars on the south track. The regular stopping place of the west-bound cars at Ninth and Wyoming was on Ninth street near the east property line of Wyoming, so that when the car was at the regular stopping place, its front end was practically at or very near the east line of Wyoming as it crosses Ninth street. At this point in Ninth street, and on the east line of Wyoming, stood one of the iron posts supporting the elevated structure above, and these posts were along Ninth street at intervals of about 45 feet. The post above mentioned as being near the east property line of Wyoming as it crossed Ninth street was about 31 inches distant from the north rail of said west-bound line. As stated, when a west-bound car was standing at the usual place for the reception and discharge of passengers, its front end would be near this post.

Plaintiff was on the south side of Ninth near the middle of Wyoming street and south of the south or east-bound track on Ninth street, when he saw a west-bound car coming towards him and approaching the intersection on the north track. That being the car he wanted to take, and it being only two or three of the aforesaid iron posts away from him, he signaled the motorman and started slightly northeast along the south track to get to the usual stopping place. The car slowed down, and when it stopped at the above-mentioned regular stopping place, plaintiff was near the rear end of the car but on the south side thereof next to the other track. So, to board the car, he had to step around its rear end to the door on its north side. As he did so, the car was standing still and several passengers got on and at least three got off. It was thus standing motionless with the door to the rear vestibule still open and the conductor in the rear vestibule facing north, and consequently toward the door, when plaintiff took hold of the handrails, put one foot on the step, and was in the act of stepping with the other foot into the vestibule, when the car started forward with a sudden jerk, swinging plaintiff around and slightly off his balance. As he swung around back again and probably would have regained his balance, the vestibule door closed so that he swung against it and could not get inside and his body was thrown slightly outward from the car. By this time the rear of the car had reached the iron pole, and plaintiff's body struck against it and he was thrown to the ground, receiving the severe and permanent injuries for which he sues.

According to defendant's theory of the case, plaintiff did not reach the point of boarding the car while it was standing still at the usual stopping place, but got there too late, and after the car had run some distance he ran after and overtook it and attempted to get on while it was in rapid motion and was hurt through his own negligent attempt to board it at that time. But plaintiff's evidence is ample, and comes from disinterested witnesses, that while the car was standing still at the usual stopping place, with the vestibule door open, and plaintiff with his hands upon the hand rail had stepped upon the car step, the car then started and the accident happened as hereinabove stated. The evidence is such that the jury could reasonably find that either one or both of the above-mentioned acts, the premature and sudden starting of the car with a jerk and the shutting of the vestibule door, caused the injury. Plaintiff was picked up at the post and carried into a nearby store. His injuries were serious and permanent. He has now, or had at the trial nearly two years after the injury, a stiffened right shoulder and his arm could not be raised above the level thereof. He suffered from a concussion of the brain, the muscles of his right eye continually jerk, frequent lapses of memory occur with dizzy or fainting attacks which were becoming more frequent, bordering on epilepsy, and a blood clot on the brain has produced a partial paralysis of his tongue. His head continually throbs and pains him, and a clicking sensation is frequently felt after which there is a blank in mind power and memory.

After setting forth the regular stopping place above described and the location of the elevated structure above the surface car line, with the iron post or upright in such close proximity to the north rail as to be dangerous to passengers should the car be moved before they were on or off, and which was or should have been known to defendant, the petition further alleged that plaintiff, with the knowledge of defendant's servants or when they should have known it, attempted to get on said car, for the purpose of becoming a passenger, at the rear end and while it was standing still at the regular stopping place for the discharge and taking on of passengers, and while so doing, the car, through the negligence of said servants, was moved and started before plaintiff had reasonable time to enter same, and the car was caused or permitted to start and move forward with a sudden or unusual jerk, and the vestibule door of said entrance was negligently caused or permitted to close, in front of plaintiff, and he was, as a result of said negligent acts and because of their negligent failure, after the operatives knew or should have known of plaintiff's danger, to open the door or stop the car, caused to be thrown out and away from said car and to strike against said upright or iron pole at said street intersection and to be thrown to the street and injured. The answer was a general denial and a plea of contributory negligence in that plaintiff caught hold of the car after it had left the usual stopping place and while it was moving, and was injured thereby.

Various complaints are made against plaintiff's instruction No. 1 which embodied his case and directed a verdict. The first of these is that it did not define the term "passenger" or tell the jury what facts would constitute plaintiff a passenger. We think the point is untenable. The instruction submitted to the jury for its decision the following questions: Whether the place in question was a regular stopping place for the discharge and taking on of passengers, whether the car did so for that purpose, whether it was standing still when plaintiff attempted to board it, whether he did attempt to board it for the purpose of becoming a passenger, whether said car was negligently caused to start forward with a sudden or unusual motion and the door was negligently caused or permitted to be closed, while plaintiff was attempting to board said car and before he, in the exercise of ordinary care, had reasonable time to enter; also whether defendant's servants in charge of the car knew, or by the exercise of the highest practical degree of care would have known, that plaintiff had hold of the handrail with his foot on the step and was about to enter, and whether in such starting of the car, if any, and the closing of the said door, if it was so closed, or either of said acts, the said servants were negligent, and whether as a direct result thereof plaintiff was thrown out and away from said car and caused to strike against one of the poles or upright posts supporting the elevated structure and was thrown down and injured. If the jury found these to exist, then they could find for plaintiff, unless the...