Ward v. Harvey

• Decision Date: 17 January 1916
• Docket Number: 11845
• Citation: 182 S.W. 105
• Parties: WARD v. HARVEY ET AL.
• Court: Kansas Court of Appeals

182 S.W. 105

WARD v. HARVEY ET AL.

No. 11845

Court of Appeals of Missouri, Kansas City

January 17, 1916

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

“ Not to be officially published.”

Action by Kate Ward against Ford Harvey and others, Receivers. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

John H. Lucas and Chas. N. Sadler, both of Kansas City, for appellants.

W. W Bryant, of Kansas City, for respondent.

OPINION

ELLISON, P. J.

Plaintiff brought this action for damages flowing from an injury she received while a passenger on one of defendant’s street cars. She recovered judgment in the trial court for $5,000. Defendant filed a motion for new trial, on the ground, among others, that the court erred in not sustaining his demurrer to the evidence. This motion was overruled and defendant excepted. Defendant afterwards, at the same term, filed a motion to set aside the order overruling its motion for new trial and to grant a new trial on account of "additional and newly discovered decisions." The trial court overruled that motion, but on same day required plaintiff to enter a remittitur for $2,000 and rendered a new judgment for $3,000. Defendant did not ask to have this judgment set aside, nor did he except to the court rendering it. On this ground plaintiff insists that under the ruling in Critchfield v. Linville, 140 Mo. 191, 41 S.W. 786 there is no matter of exception before us. But by reference to Lemp v. Lemp, 249 Mo. 295, 305, 155 S.W. 1057, Ann. Cas. 1914D, 307, it will be seen that that case, if not modified, is at least explained.

It is charged in plaintiff’s petition that she was a passenger on defendant’s car running on Central avenue, Kansas City, Kan and that she desired to get off at the "safety stop," or regular stopping place, at Seventh street, and she signaled such desire, and that thereupon defendant’s servants caused the car to be "slowed down" and invited her to get off the car at said place, a point about 50 feet east of Seventh street, and that she accepted the invitation and held herself in readiness to get off, under the impression that the car was stopping at the "safety stop," or regular stopping place. It is then charged that while she was standing at the rear exit of the car, preparatory to getting off, while the car was being slowed down, defendant’s servants "carelessly and negligently caused the car to move forward with increased speed and shock; * * * that by reason of such negligence she was thrown to the pavement and seriously and permanently injured." There was no evidence to support the negligence charged in the petition. The proof was that the car did not slow down for a stop...