Wood v. Metropolitan Street Ry. Co.
| Decision Date | 10 May 1904 |
| Parties | JOHN D. WOOD, Administrator of ANNIE WOOD, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. Wm. L. Jarrott, Judge.
Affirmed.
Frank Hagerman, R. T. Railey and John H. Lucas for appellant.
(1) Under the circumstances in this case, defendant, at time and place of accident, owed to plaintiff the duty of exercising ordinary care. Ray's Neg. Imp. Duties (Passenger), sec 33, p. 95; 4 Elliott on Railroad, sec. 1590, pp. 2477-8-9; Kelly v. Railroad, 112 N.Y. 443; Laflin v Railroad, 106 N.Y. 139; Cross v. Railroad, 69 Mich. 367; Buenemann v. Railroad, 32 Minn. 392; Railroad v. Gross, 21 S.W. 186; Moore v Railroad, 84 Mo. 487. The case, however, was tried in the court below upon the above theory of law, as will appear from a perusal of plaintiff's instructions and defendant's instructions. (2) The mere fact that the platform in controversy fell and that after the wreck some defects were found in the material, does not authorize a recovery upon the part of plaintiff. 3 Elliott on Railroad, sec. 1308; Sack v. Dolese, 27 N.E. 64; Pierce on Railroad, 383; 2 Rorer on Railroad, 1200-1201; Ray's Neg. Imp. Duties (Personal), 133; Railroad v. Bates, 45 N.E. 111; Krampe v. St. L. B. Ass'n, 59 Mo.App. 283; Moss v. Railroad, 49 Mo. 170; Murphy v. Railroad, 71 Mo. 202; Roblin v. Railroad, 119 Mo. 484; Ballou v. Railroad, 5 Am. and Eng. R. R. Cases, 486. (3) The evidence discloses that large crowds had been habitually passing over this identical section which fell out, without injury. The defendant had not only employed competent men to do so, but they had actually used, more than ordinary care in inspecting this platform. Under the circumstances defendant was guilty of no negligence. (4) The court committed reversible error in permitting Dr. Kuhn to invade the province of the jury and testify that Mrs. Wood had neurasthenia, and that, in his opinion, the fall which she sustained when the platform fell, caused said disease. State v. Palmer, 61 S.W. 657; Graney v. Railroad, 157 Mo. 682; Langston v. Railroad, 147 Mo. 465; Boettger v. Iron Co., 136 Mo. 536; Benjamin v. Railroad, 133 Mo. 288; King v. Railroad, 98 Mo. 240; Gutridge v. Railroad, 94 Mo. 472; Eubank v. Edina, 88 Mo. 655; Koons v. Railroad, 65 Mo. 597; Gavisk v. Railroad, 49 Mo. 276; Benjamin v. Railroad, 50 Mo.App. 610; Muff v. Railroad, 22 Mo.App. 584; Railroad v. Smith, 61 S.W. 3; Brown v. Mitchell, 31 S.W. 628; Railroad v. Sheldon, 51 P. 808; Jones v. Portland, 50 N.W. 731; Briggs v. Railroad, 53 N.W. 1019; Lawson on Exp. Ev., 30; Rogers on Exp. Tes. (Last Ed.), sec. 53, pp. 127-8-9; Holt v. Railroad, 84 Mo.App. 445; Am. B. Ass'n v. Talbot, 141 Mo. 682; Laflin v. Railroad, 106 N.Y. 136.
Wallace, Wallace & Culbertson for respondent.
(1) There was abundant evidence of negligence to sustain the verdict. Mullen v. St. John, 57 N.Y. 567; Thomas v. Tel. Co., 100 Mass. 156; Scott v. Dock Co., 3 Hurl. & Colt 596; Burn v. Boadle, 2 Hurl. & Colt 722; Koelsch v. Philadelphia Co., 152 Pa. St. 355; Judson v. Giant Powder Co., 107 Cal. 549; Tally v. Ayers, 3 Sneed 677; Seiter v. Bischoff, 63 Mo.App. 157; Minster v. Railroad, 53 Mo.App. 276; Shepard v. Railroad, 20 W. R. 705; Warren v. Kauffman, 2 Phila. 259; Yerkes v. Packet Co., 7 Mo.App. 265; Sharp v. Railroad, 114 Mo. 94; Jordon v. Railroad, 165 Mass. 345; Youmans v. Navigation Co., 44 Cal. 72; Railroad v. Philips, 49 Ill. 234; Lyons v. Rosenthal, 11 Hun 46; Railroad v. Mahone, 63 Md. 135; Simson v. Omnibus Co., L. R. 8 C. P. 390; Kearney v. Railroad, L. R. 5 Q. B. 411; Sheridan v. Foley, 58 N. J. L. 230; Rose v. Transportation Co., 11 F. 438; Hipsley v. Railroad, 88 Mo. 348; Guttridge v. Railroad, 94 Mo. 468; Swadley v. Railroad, 118 Mo. 268. (2) The court did not err in permitting Dr. Kuhn to give his opinion as to the cause of the plaintiff's condition. Greenleaf on Evidence, sec. 440; Donnelly v. Railroad, 70 Minn. 278; McLain v. Railroad, 116 N.Y. 468; Stouter v. Railroad, 127 N.Y. 661; Filer v. Railroad, 49 N.Y. 42; Flaherty v. Powers, 167 Mass. 61; Turner v. Newburg, 109 N.Y. 308; Decatur v. Fisher, 63 Ill. 241; Commonwealth v. Mullins, 2 Allen (Mass.) 295; Tracy v. Railroad, 63 N.Y.S. 342; Stout v. Ins. Co., 130 Cal. 471; Railroad v. Seymour, 92 Md. 425; Railroad v. Laws, 61 S.W. 498; Smiley v. Railroad, 160 Mo. 639; Railroad v. Roller, 100 F. 738; Roark v. Greeno, 61 Kan. 299; Railroad v. Holsapple, 12 Ind.App. 306; Crouse v. Railroad, 102 Wis. 204; Holman v. Railroad, 114 Mich. 214; Chatsworth v. Eliza Rowe, 166 Ill. 114; Quinn v. O'Keefe, 41 N.Y.S. 116 (9 A.D. 68); McKeon v. Railroad, 94 Wis. 483; Bowen v. Railroad, 89 Hun 594; Friess v. Railroad, 67 Hun 211; Williams v. State, 64 Md. 393; Torpedo Co. v. Fishburn, 61 Ohio St. 608; Commonwealth v. Thompson, 159 Mass. 56; Indemnity Co. v. Dorgan, 58 F. 945; Bram v. United States, 168 U.S. 569; Johnson v. St. G. & L. Co., 146 N.Y. 152; Hopt v. Utah, 120 U.S. 436; Railroad v. Burnett, 80 Tex. 538; Railroad v. Thompson, 75 Tex. 501; Manufacturing Co. v. Mulvany, 168 Ill. 311; Chamberlain v. Light & Power Co., 158 Mo. 1; Greenleaf on Evidence, sec. 440.
This is an action for damages for personal injuries alleged to have been caused by the negligence of defendant.
The petition states that the defendant prior to and on the sixth day of October, 1897, was a common carrier of passengers for hire in Kansas City, Missouri, and from Kansas City to Independence, and as such owned, operated and controlled a system of cable street railways on various streets in Kansas City, one of its said lines extending along Fifteenth street in said city, and that it also owned and operated an electric railway from Kansas City to Independence; that said electric railway was operated by defendant in connection with its cable system in Kansas City, and at the western terminus of said electric railway near Askew avenue and Fifteenth street passengers were transferred by defendant by continued right of transportation sold by defendant from said Fifteenth street line to said electric railway and thence to Independence. That as such common carrier defendant owned, operated and controlled a certain depot at the western terminus of said electric railway, together with the platform in and about said depot, which said platform and depot were used by the passengers of defendant on said electric railway on said Fifteenth street line in transferring from one of said lines to the other; that on the north and northeast side of said depot there was at the time and on the date already mentioned a wooden structure or platform upon which certain timbers of said structure of the rails of defendant's said electric railway rested and its cars were caused to stand for convenience of its passengers in taking passage upon or alighting from its cars, which said structure was covered with wooden planks extending up to and against said depot and making a continuous floorway from said depot to its said cars, and over which passengers passed in boarding or alighting from its said cars in transferring from one of its said lines to the other; that on said sixth day of October, 1897, the plaintiff, Mrs. Annie Wood, was a passenger on a ticket purchased by her from defendant on its Fifteenth street line entitling her to continuous passage over said electric railway from Kansas City to Independence, and had been carried on said Fifteenth street line to said depot, and while transferring from said Fifteenth street line to said electric railway, and while in the exercise of due care and caution on her part, she came upon said platform at said depot, and was about to board one of defendant's electric cars then and there standing at said depot for the reception of passengers, when said platform gave away and fell, and she was precipitated with great force to the ground; that said platform was at this point sixteen feet high, and she was thrown this distance suddenly and violently to the ground beneath; that by said fall she was severely and permanently injured, in this, to-wit: her left hip was bruised, wounded and sprained; her left side wounded and bruised and her left arm sprained and bruised and permanently injured; the back of her head hurt and wounded, rendering her unconscious and her nervous system greatly and permanently injured; she has suffered great pain and mental anguish and will continue to suffer the same in the future; that said injuries were caused by the falling of said platform, and the falling and giving away of said platform was caused by the negligence of defendant in carelessly and negligently permitting the timbers and supports of said platform to become rotten, decayed, weakened and in unsafe condition and in permitting it to remain in such defective condition, which said rotten and unsafe condition was known to defendant or by the exercise of ordinary care and diligence could have been known to it in time to have repaired the same before such injury. Plaintiff states she was damaged by the said negligence of defendant in the sum of $ 25,000.
The answer was a general denial.
Plaintiff recovered a verdict and judgment for $ 5,500, and defendant appeals. After the appeal was filed in this court plaintiff died and the cause has been revived in the name of her administrator, John D. Wood.
The evidence established that Mrs. Wood, the plaintiff, was a passenger on defendant's Fifteenth street cable line having a ticket from Kansas City to Independence, and when she reached the depot of defendant's electric car line, left the cable car to take the electric car. The platform was crowded on account of the fall festivities that week, but the...
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