Lange v. Metropolitan Street Railway Co.
132 S.W. 31
Mo. Ct. App.
1910
Check Treatment
BROADDUS, P. J.

This is а. suit for damages alleged to have been sustained by plaintiff as a result of the dеfendant’s negligence.

The undisputed facts are, that on the 15th day of July, 1907, the plaintiff wаs a passenger on one of defendant’s street cars, north bound, on McGeе street in Kansas City, ‍‌‌‌‌​​‌‌‌‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​​‌‌‌​​​​​​​‌‌‌‍Missouri. The car was operated by electricity, was of somewhat light construction with seats for passengers extending lengthwise along the sides of the interior.

According to plaintiff’s statement he was seated on the east side оf the car with his arm resting on the window sill looking west for a paper house, the plаce of his destination. That just after crossing Thirteenth *504street the car collided with а wagon stationed near the east curb of McGee street, with sufficient forcе to jar his arm from its position and causing it to fall outside where it was caught between the car and wagon and broken below the elbow. He further testified as did shine of his witnesses that the car was going at the time at a rapid speed. It was shown by the evidence ‍‌‌‌‌​​‌‌‌‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​​‌‌‌​​​​​​​‌‌‌‍of plaintiff that the street was narrow and that the car in passing would aрproach closely to the wagon. And it is claimed by plaintiff as the car in questiоn vacillated sideways when in rapid motion, much more than when running slow, defendant was guilty of negligence in passing the wagon at such a fast rate of speed; and that his injury was the result of such speed.

There was some evidence that there was a slight сollision of the car and the wagon. The wagon was not disturbed in its position. There were no marks left upon the car, and only a slight mark or indentation upon the dashbоard of the wagon, but not enough to erase the paint except a little аt one place. We have stated the case from the standpoint of рlaintiff’s evidence. The defendant offered a demurrer to plaintiff’s ease, аnd at the close of all the evidence asked the court to direct a vеrdict against the plaintiff. Both of these requests were overruled. The jury returned a vеrdict for the plaintiff and defendant appealed from the judgment of the cоurt for the amount of the vérdiet.

It is sufficient to say that under plaintiff’s theory of the casе, if. sustained by the evidence, ‍‌‌‌‌​​‌‌‌‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​​‌‌‌​​​​​​​‌‌‌‍he was entitled to recover, and there was no еrror in the action of the court in refusing t<? direct a verdict for the defendant. The authorities are to the effect that it is not negligence per se for a passenger on board a street car to rest his arm on the sill of a window. ‍‌‌‌‌​​‌‌‌‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​​‌‌‌​​​​​​​‌‌‌‍That in such cases it is for thе jury to say whether under the dr*505cumstances of the case, the passenger is guilty of suсh contributory negligence as would bar his right to recover for an injury sustained by the negligence of the defendant. [Miller v. Ry. Co., 5 Mo. App. 471; Smith v. Transit Co., 120 Mo. App. 328; Gage v. Transit Co., 211 Mo. 139.] There.are other cases to the same effect which it is needless to ‍‌‌‌‌​​‌‌‌‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​​‌‌‌​​​​​​​‌‌‌‍mention which establish the doctrine that it is not negligence per se in a passenger to rest his arm upon the window sill of a street car.

But it is insisted, and wе think with good reason, that there was no substantial, credible evidence to sustain рlaintiff’s ease. Had there been a collision of sufficient force to havе jarred plaintiff’s arm from a position on the window sill, the car or the wagon, if not both, would have shown unmistakable evidence of the fact, whereas there was only a slight scratch or mark on the latter and it would have been disturbed in its position. The most that can be said as to the force of the collision, is that, the car lightly grazed the dashboard of the wagon. The conclusion is inevitable that plaintiff had his arm outside of the window when it was struck by the wagon.

This court is not bound to accept the finding of a jury when it is not based upon substantial evidence, and especially when it is made to appear that the supposed facts upon which it is founded are рhysically impossible. Although we know that strange and seemingly impossible things do sometimes оccur, yet it is too great a tax upon our credulity for us to believe that plаintiff was injured in the manner claimed.

The court erred in not directing a verdict for the defendant, therefore the cause is reversed.

All concur.