Whitaker v. Kansas City Rys. Co.

• Decision Date: 27 January 1919
• Docket Number: No. 13117.,13117.
• Parties: WHITAKER v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

209 S.W. 632

WHITAKER v. KANSAS CITY RYS. CO.

No. 13117.

Kansas City Court of Appeals. Missouri.

January 27, 1919.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

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

Clyde Taylor, of Kansas City, for appellant.

Frank Friedberg, J. Johnson, and D. W. Johnson, all of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff having recovered a verdict and judgment, defendant has appealed.

Defendant's first point is that its demurrer to the evidence should have been sustained. The facts show that on the 2d day of January, 1915, plaintiff was a passenger upon one of defendant's cars at Kansas avenue and Adams street in Kansas City, Kan.; that at said point said car had stopped to permit passengers to alight; and that while plaintiff was in the act of alighting the car started up, throwing her so that she fell to the pavement of the street to her injury. She testified on direct examination that:

"I had stepped down to the bottom step and just in the act of stepping off the car when the car started and threw me. * * * Well, it started—just started with a jerk like and just threw me."

She testified that she fell on her left side, and "it seemed that my limb—I don't know— it kind of doubled up under me and I fell mostly on my left side; the left side of me struck the pavement." On cross-examination she testified that the rear vestibule of the car was divided by a perpendicular rail in the middle of the step; that she got off the exit portion, or that between the rail and the car; that the car was going toward the west; that she alighted from the north side of the car, and that at the time was facing north; and that she had hold of the handrail with her right hand. We gather from her testimony, taking it in its most favorable aspect to her, that this handrail was the dividing rail and not the one next to the body of the car. She further testified that she was on the lower step, and just in the act of stepping down to the pavement when the car started with a jerk, jerked her feet from under her, and threw her off, and "it just, I guess, it dragged me two or three feet or just some little—I don't know, but I was just kind of holding to the car and it jerked me loose—and in holding on to the car like this (indicating) it seemed it pulled me around to the left and I fell on the left side."

It is defendant's contention that there is an inconsistency between plaintiff's testimony given by her on direct examination and that given by her on cross-examination, and that under the rule laid down in Steele v. Railroad, 265 Mo. 97, 175 S. W. 177, a witness may not give testimony as to how an accident happened diametrically opposed to testimony theretofore given by her without some explanation of the change. Whether the rule stated in Steele v. Railroad, supra, has any application in this case we need not say. We do not think that there is any inconsistency in plaintiff's testimony as given in her direct examination and as given in her cross-examination. In her direct examination she did not testify to holding the handrail or to being dragged. She was not asked in relation to these matters, and gave no testimony one way or the other as to them. Her cross-examination shows nothing more than a fuller description of the manner in which she fell. She testified on direct examination that she was in the act of stepping off the car when the car started and threw her, and on cross-examination she substantially repeated the same testimony, and further stated that the car dragged her. The dragging was evidently for only a very short distance. We must take the evidence in, its most favorable light to plaintiff, and we construe the whole of her testimony on direct and cross examination to mean that the car first threw her and then dragged her a short distance, and that her grasp of the rail was loosened by the continued forward movement of the car, and that she then fell to the pavement. There is no point made that there was any failure of proof of the cause of action alleged in the petition. We are unable to find any inconsistency in plaintiff's testimony. We do not intend to intimate that we could pass upon the question of inconsistency in plaintiff's testimony even if there were any.

The defendant urges that the way in which plaintiff claims that she fell is contrary to physical laws, in that plaintiff must have fallen on her right side with her head toward the opposite direction from that in which she claimed. And in this connection defendant points out that plaintiff testified on cross-examination that "I guess it dragged me. * * * I don't know—it seemed to pull me around to the left, and I fell on my left side."

It is defendant's contention that by reason of the expressions used by plaintiff which appear above in italics, her testimony amounted to a mere conjecture, and did not constitute statements of facts, and should be disregarded, citing Willis v. Terminal R. Co., 199 S. W. 740. That case involved a...