Vrooman v. Harvey

• Decision Date: 16 July 1917
• Docket Number: No. 18252.,18252.
• Citation: 197 S.W. 118
• Parties: VROOMAN v. HARVEY et al.
• Court: Missouri Supreme Court

197 S.W. 118

VROOMAN v. HARVEY et al.

No. 18252.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Rehearing Denied July 27, 1917.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Clarence L. Vrooman against Ford F. Harvey and others. Verdict for defendants, and judgment accordingly, and plaintiff appeals. Reversed and remanded.

W. W. Bryant and Percy C. Field, both of Kansas City (J. M. Johnson, of Kansas City, of counsel), for appellant. Clyde Taylor and Charles A. Stratton, both of Kansas City, for respondents.

WHITE, C.

The plaintiff was injured in an attempt to board a street car at the corner of Prospect avenue and Thirty-Fifth street in Kansas City, while the car was being operated by the defendants as receivers of the Metropolitan Street Railway Company. Prospect avenue runs north and south, and is intersected by Thirty-Fifth street, running east and west. The car in question was going north on Prospect avenue, stopped on the south or near side of Thirty-Fifth street to discharge a passenger, and then started up and continued on its course across that street The plaintiff approached from the east, running on the north side of Thirty-Fifth street, intercepted the car as it reached that side of the street, seized the handhold of the back platform, got onto the step, and was swung off, as he testified, by a sudden acceleration of the speed or jerk, so that he fell to the ground behind the car and suffered the injury sued for. He testified that in approaching the crossing he waved his hand, signaling the motorman that he wanted to take passage; that the motorman saw him and in response to his signal slowed down to about two miles an hour, and as the car passed plaintiff seized the handhold, was thrown off, and injured as stated. Several witnesses testified to seeing him running to catch the car and waving his hand, and to the sudden acceleration of speed as he attempted to get on. On behalf of the defendant the evidence was that the car started up on the south side of Thirty-Fifth street and slowly increased its speed, and did not at any time slow down nor suddenly increase its speed; that the motorman did not see the plaintiff at any time, but the conductor, on the rear platform, saw him as he attempted to get on. The only act of negligence on which plaintiff sought to recover was the alleged violent jerk and sudden acceleration of speed while he was in the act of boarding the car, after the motorman in response to his signal had slowed it down so that a person of ordinary prudence would deem it safe to attempt to get aboard. There was a verdict for the defendant, and judgment accordingly, from which the plaintiff appeals.

I. The only error claimed on which the appellant seeks a reversal is the giving on behalf of defendant of instruction 8, as follows:

"The court instructs the jury that the defendant company had the right to run its cars at the place in question, and to increase the speed of said cars, and that the plaintiff had no right to attempt to board the car of said defendants at said point while the same was in motion, and if he did so, and was thrown by the motion of said car, then he cannot recover in this case, and your verdict must be for the defendants."

In considering the propriety of this instruction it will be remembered that the only allegation of negligence upon which the plaintiff sought to recover was the sudden acceleration of speed of the car while he was attempting to board it. No negligence was claimed on account of any failure to stop the car at the usual stopping place, where in fact it had stopped. This instruction asserts that the defendant company had the right to "increase the speed of said car"; that is, without regard to whether the increase of speed was at the very time the plaintiff was attempting to board it, or whether the increase was sudden or gradual, much or little, and without regard to whether or not the plaintiff had been invited to board the car while running at a very low rate of speed. In fact, the jury were allowed to infer that the company had a right to increase the speed in the very manner and to the very extent which would justify a recovery if the petition states a cause of action, about which there is no dispute. This instruction further, in saying the plaintiff "had no right to attempt to board the car of said defendants at said point while the same was in motion," ignores the evidence tending to show that the plaintiff was invited to board it and the car slowed down for the purpose, and that the motion was such that a person of ordinary prudence would attempt it. These are statements of the positive rights of the defendant and the absence of right on the part of the plaintiff which would determine the verdict, whether or not there was a direction in the instruction to render a verdict on the finding. The instruction further says that, if the plaintiff were thrown off by the motion of the car, then he could not recover. It is true, if plaintiff attempted to board the car after it had started from the usual stopping place, and was in motion when he made the attempt, and if he was thrown off by the ordinary motion, he could not recover. Gunn v. United Railways Co., 193 S. W. 814, decided at the October term, 1916, of this court, and not yet reported. But this instruction does not limit the finding to the ordinary motion of the car. On the contrary, it must refer to the accelerated motion, because, after stating that the defendant had a right to increase the speed of the car, the jury are told that if he was thrown off by the motion — that is, the suddenly increased speed — then he could not recover. So, under the instruction, the jury were authorized to find for the defendant, although they might find that the plaintiff was invited to board the car as he claims, that the speed was reduced in response to his signal, so that he might do so in perfect safety, and that he was thrown off by a sudden acceleration of speed at the very moment he was attempting to board it. It was in direct conflict with the first instruction given for plaintiff, to the effect that if plaintiff signaled the approaching car, and the motorman saw the signal and caused the speed of the car to be slackened for the purpose of allowing plaintiff to board the car to such a degree that a person of ordinary prudence would attempt it, and that while he was in the act of boarding it the motorman caused it suddenly to move forward with a jerk, whereby he was thrown and injured, they should find for the plaintiff.

II. Respondent...