Zimmerman v. Kansas City Public Service Co.

• Decision Date: 25 May 1931
• Citation: 41 S.W.2d 579,226 Mo.App. 369
• Parties: DORA ZIMMERMAN, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE CO., APPELLANT
• Court: Kansas Court of Appeals

41 S.W.2d 579

226 Mo.App. 369

DORA ZIMMERMAN, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE CO., APPELLANT

Court of Appeals of Missouri, Kansas City

May 25, 1931

Appeal from Circuit Court of Jackson County.--Hon. Thos. J. Seehorn Judge.

AFFIRMED.

Judgment affirmed.

Harry G. Kyle and Walter A. Raymond for respondent.

Charles L. Carr, E. E. Ball and Harding, Murphy & Tucker for appellant.

ARNOLD J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.

--Action in damages for personal injury. Defendant is a corporation, organized and existing under the law, engaged as a common carrier of passengers for hire, and managing, controlling and operating a system of street railways in Kansas City, Missouri. Plaintiff is married and lives with her husband and two children in said city, and was thirty-six years of age at the time of the occurrence forming the basis of this suit.

The testimony in behalf of plaintiff shows that on February 21, 1928, at about four o'clock P. M., plaintiff attempted to board one of defendant's eastbound street cars on its Twelfth Street line, which had come to a stop at its scheduled stopping place on the east side of Walnut Street near its intersection with Twelfth Street. The car was what is known as a one-man car, that is, the crew consisted of but one man who stood at the controls in the front vestibule, received fares and operated the car, the usual entrance and exit to which was at the side of the front vestibule. There were also doors for entrance at the rear vestibule but these were not opened except at certain stops and then only from the outside by a conductor, or fare-taker, stationed at busy intersections, and who opened such rear doors by the use of a key. The testimony shows there was such a conductor or fare-taker, on the occasion in question, stationed on the pavement taking fares. Plaintiff paid him her fare and when the rear door was opened in the manner above indicated, she started to get on and while thus engaged, having one foot on the step which had been automatically lowered by the mechanism opening the door, the car suddenly moved backward, throwing plaintiff to the street with great force and violence, causing the injuries of which she complains. Plaintiff testified that in attempting to enter the car, she took hold of an iron rod with her right hand and the sudden movement of the car caused her to lose her balance, her hold on the rod was broken and she fell.

It is in evidence, and not disputed, that the mechanism of the car is such that the opening of the car door also lowers the step. The testimony further shows that after plaintiff had fallen the faretaker took hold of her, assisted her to her feet and to board the car; asked if she were hurt and plaintiff answered "Yes, but not much." Plaintiff entered the car, seated herself and changed cars at Twelfth Street and Troost Avenue, taking a southbound car on Troost Avenue to the end of that line where she again transferred to a bus operated by defendant company, south to Sixty-first Street, and thence walked two or three blocks to her home at 6108 Rockhill Road.

The petition is formal and as its sufficiency is not questioned, we need only set out here the part required in the consideration of this appeal, as follows:

"That while said street car was so stopped at the regular stopping place the rear vestibule entrance door thereof was opened for the purpose of allowing passengers to board thereon; that plaintiff started to board said street car as said rear entrance door and while she was in the act of boarding said street car at said time and place the street car was negligently caused or permitted to move as a result plaintiff was thrown to the pavement of said street and as a direct and sole result thereof she received the following severe and permanent injuries, to-wit:

"That the trunk of her body and all of her organs were jarred, bruised and twisted:

"That her back, spine, spinal column was bruised, contused, wrenched, sprained and twisted; that her hips, legs, knees and ankles were bruised, contused, wrenched and sprained; that she received a severe and permanent shock to her entire nervous system; that on the 21st day of March, 1927, twenty-three days after said fall and injury she had a miscarriage which was caused solely and directly by said fall and injury. Plaintiff further states that all of the aforesaid injuries which are permanent and progressive were directly caused by the carelessness and negligence of the said defendant or its agents and servants in charge of the operation and management of the said street car and while acting in the line of their duty and scope of their employment for the defendant in this, to-wit:

"That said street car was negligently caused or permitted to move while plaintiff was in the act of boarding thereon; that the reason or cause for said street car moving at said time and place was not know to the plaintiff and is peculiarly within the knowledge of the defendant or its agents and servants."

Judgment was sought in the sum of $ 15,000.

The answer was a general denial. The cause was tried to a jury and resulted in a verdict, signed by nine of the jurors, in favor of plaintiff in the sum of $ 5,000. Judgment was entered accordingly. Timely motions for a new trial and in arrest of judgment were unavailing and defendant appeals.

While the motion for a new trial enumerates twenty errors, only two are briefed and argued here. The first point urged is the court erred in giving plaintiff's instruction No. 1, because it assumed the presence of the res ipsa loquitur doctrine; that the petition charges specific negligence and the only issue on the question of negligence was whether or not the car jerked while plaintiff, in the exercise of due care, was in the act of boarding it. Plaintiff insists the petition charges only general negligence; that it does not specifically set out the particular servant whose act caused the injury, but alleges "defendant or its agents and servants in charge of the operation and management of the street car . . ." caused plaintiff's injury. The petition states plaintiff did not know the cause of the starting of the car and that it "is peculiarly within the knowledge of the defendant or its agents and servants." Plaintiff argues this was not a specific charge of negligence, but a general charge and the doctrine of res ipsa loquitur applies. In support of its contention that the petition alleges specific negligence, defendant cites the cases of Stolovey v. Fleming et al., 328 Mo. 623, 8 S.W.2d 832, 320 Mo. 946 and Lammert v. Wells, 321 Mo. 952, 13 S.W.2d 547, both Supreme Court cases wherein the question arose as to whether the charge of negligence was general or specific.

In the Stolovey case, the court said:

"In Bergfeld v. K. C. Rys. Co., 285 Mo. 654, 227 S.W. 106, 109, we said: 'In order to allege specific negligence, as said in the Price case, there must not only be an averment as to the particular servants whose negligence is complained of, but it must also be pointed out wherein they, or either of them, have been negligent.'

"The pleading before us not only contains 'an averment of the particular servants whose negligence is complained of,' but it specifically points out wherein these servants were negligent, to-wit: 'in starting the car while the plaintiff had one foot upon the step and trying to get thereon as a passenger.' We are unable to conceive of a more definite and specific allegation of negligence, and certainly such pleading does not bring the case within the doctrine of res ipsa loquitur."

Of like effect is the holding in the Lammert case where the petition alleged:

"While said car was stopped at said intersection for the purpose of allowing passengers to alight therefrom, plaintiff attempted to and was in the act of leaving said car at the front door thereof, and while plaintiff was so in the act of leaving said car and before plaintiff had stepped therefrom onto the street, the agents and servants of the defendant in charge of and operating said car, as aforesaid, carelessly and negligently caused and permitted said car to start."

We are of the opinion the cases cited afford no consolation for defendant in its contention. The rule is well settled that in alleging specific negligence there must be an averment as to the particular servants whose negligence is complained of and it must be specifically pointed out wherein these servants or any of them, have been negligent. In Porter v. Light, etc., Co., 311...