Zeiler v. Metropolitan Street Ry. Company
| Decision Date | 13 February 1911 |
| Citation | 134 S.W. 1067,153 Mo.App. 613 |
| Parties | MARY A. ZEILER, Respondent v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon James H. Slover, Judge.
AFFIRMED CONDITIONALLY.
John H Lucas for appellant.
Scarritt Scarritt & Jones for respondent.
This is an action by a passenger against a common carrier to recover damages for personal injuries caused by the negligence of the carrier in suddenly starting the car in which the passenger was riding, while she was alighting therefrom. A trial to a jury resulted in a verdict and judgment for plaintiff for five thousand dollars and the cause is before us on the appeal of defendant.
The injury occurred June 8, 1908, on Main street in Kansas City at either Eighteenth or Nineteenth streets. The evidence of plaintiff does not fix the place with certainty while that of defendant shows that the car was at Eighteenth street at a regular stopping place for the receiption and discharge of passengers. The car was north-bound and stopped to let off passengers, among them plaintiff and her two companions who desired to transfer to a car on another line of defendant. The conductor watched the three women leave the car and states that it was stationary the whole time; that he gave no signal to start while they were alighting, that the car did not start and that plaintiff in stepping off accidently tripped or stumbled and pitched forward to the pavement. His statement is supported by the testimony of numerous witnesses.
On the other hand, the testimony of plaintiff and her witnesses tends to prove the following facts: When plaintiff, who was sixty years old and weighed 270 pounds, and her two companions started to leave the car it had stopped in response to their signal and remained stationary until plaintiff was going down the steps at the entrance to the rear vestibule, when it gave a violent lurch forward and threw her to the pavement, face downward. She screamed as she fell and the car stopped after running not more than three or four feet. Plaintiff was preceded by one of her companions and followed by the other. The one in front alighted in safety and started to the sidewalk when she was arrested by plaintiff's outcry. She did not see the car move but observed plaintiff lying prone some distance rearward of the car. The woman following plaintiff testified:
Another of plaintiff's witnesses--a passenger on the car--testified:
He further stated that after suddenly starting, the car moved four or five feet.
Plaintiff states that as she started down the steps she grasped the handhold at the rear of the vestibule with her right hand and held on until the force of her fall caused her to let go.
The petition alleges "but defendant, disregarding its duty to plaintiff as its passenger, by and through its servants and agents upon and in charge of and managing its said car, carelessly failed and neglected to cause said car to remain stopped a reasonably sufficient length of time for plaintiff to alight therefrom in safety, but carelessly and negligently permitted and caused said car to be moved and started forward suddenly and with a jerk, while plaintiff as such passenger was in the act of alighting from said car, and without any warning thereof to plaintiff, and when defendant's servants and agents upon and in charge of and managing said car saw, or by the exercise of ordinary care might have seen, the situation of the plaintiff while in the act of alighting from said car, in time by the exercise of due care to have so managed said car as to have avoided any injury to plaintiff."
At the request of plaintiff the court gave the following instructions:
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