140 Mo. 125 | Mo. | 1897
This case is here on an appeal from an order setting aside the verdict of a jury. The action was begun to recover damages for injuries alleged to have resulted to plaintiff from defendant’s negligence. Plaintiff was a passenger on one of defendant’s open summer cars in Kansas City, and when attempting to alight therefrom fell and was injured. The case was tried by a jury resulting in a verdict for plaintiff for $5,000. Defendant filed its motion to set aside the verdict and grant it a new trial, which was sustained, and the reason assigned by the court for so doing was “that the verdict should have been for the defendant under the evidence submitted instead of plaintiff.”
Plaintiff chai’ges in her petition that defendant carelessly and negligently used cars dangerously constructed in this, that the wheels were permitted to extend up through the floor of its car to a height of five or six inches over which was placed a sheet iron fender or wheelhouse. That the outside of the fender or wheelhouse was three inches from the outside support of the car seats under which it extended, thereby forming a slot or space between the wheelhouse and the cai; seat into which a passenger without fault is liable to get a foot caught whiles attempting to alight fi’om its ears and for her cause of action states that: "On or about the thirtieth day of August, 1891, she became a passenger of defendant, on one of its lines of road in said Jackson county, Missouri, by boarding one of its cars and paying the usual fare to be transported to a point on its line known as Twelfth and Mulberry streets in Kansas City; that when said car arrived at her point of destination the servants operating and managing the same stopped at plaintiff’s request for her to alight therefrom; that she was sitting in the grip car of defendant, in a seat just back
Plaintiff is not very clear in her testimony as to just how or why her left foot in getting into and becoming fastened between the wheelhouse or fender and the side of the car seat in front of her, threw her to the pavement or caused her to fall. Nor is her statement as to how the fall occurred ample to warrant the inference that the fall was the result of the foot becoming fastened, but is only sufficient to explain the way the sprain to her ankle might have happened after the fall did occur.
Below .is given all that plaintiff said on that branch of the case.
Being sworn-, she testified:
“I am 47 years old, live in Kansas City, Missouri, for seventeen years; husband’s name, William Thompson. He is a stone mason. I was on the Metropolitan street cars August 30th, 1891. I got on at the*132 stock yards to be carried to Twelfth and Mulberry streets, close to my home. I sat on the single seat on the right hand side of the grip car. The car stopped at Twelfth and Mulberry streets. I stood up and got hold of the back of the seat, and, as I made a motion to get off, I moved my right foot to get out, my left foot stepped in this — I don’t know what you call it— kind of a trap, or what it is I couldn’t say; there where the wheel comes up; and, as I put my right foot to step down, my left foot hadn’t got down, and when my right foot got there, as I tried to get hold of the post, my foot cracked and I lost all balance of myself and my sight left my eyes. I was conscious for a few minutes when I struck the ground. A colored man came and a white gentleman came to my assistance. I hollered I was hurt. I thought my leg, ankle and hip were broke. They took my foot out and laid me down by the side of the car. Pretty soon a lady came to my assistance. I recognize this model as being about full size of one half the car. There was a back to all the seats. You could turn them' either way. It was in this fender where my foot caught. I was in the front seat of the two short seats. My foot caught between the fender and the side here. I did not get quite down on the running board. I took hold of back of the seat and aimed to catch the post with my left hand, when my foot caught; I hollered and fell right on the ground. They carried me over to the sidewalk, got a hack and took me home. ... I can not tell any more minutely than I did how my foot happened to get into that place. It was kind of dark. Only as I moved to get out of the seat, when I moved my right foot I found my left foot was caught there. It hurt me so bad that I left the post and fell back. I gave my ankle a wrench as I went to step on the running board.”
“This car here (model in court) practically represents the grip car as it was when I got on it; that is the way the wheel was covered under the seat. I did not notice it before I fell. It was dark when I got on. I had an idea it was there, but I did not think my foot could catch in there. I knew it was there, but did not know it was liable to catch anyone’s foot.”
“Q. You were lying on the ground and your foot was up, in that position; is that right? A. I suppose it is. The woman who came up is Mrs. Kircheshur; have known her two or three years. She has been to see me since I was hurt. She helped take me home. It was my left foot that got fastened. My foot hadn’t got down to the running board yet; as I was putting it down my left foot cracked and I grabbed for the post, and I didn’t catch it, and fell over. I fell right out. I did not get hold of the post. I got hold of the back of the seat. I couldn’t say whether I got hold of the posts or not. My foot was caught, and I couldn’t see; a blaze of fire jumped out of my eyes when my foot got hurt. I hadn’t hold of anything. The heel and toe both caught. I did not look about the car when I started to get off. I didn’t give it a thought. I don’t know whether my foot was caught there when I started to rise up. I don’t think it was. I don’t know how it got there. I had to stand up to make room to get my other foot out. The car didn’t move at all.”
“ Q. Here is where you sat and your foot caught in between this fender and the side here? A. Yes, sir.
‘“Q. You stepped down with your right foot on the running board? A. Didn’t get quite down on the running board.
*134 “Q. Which post, did you take hold of? There was a'back to this seat? A. Yes, sir.
“Q. Did you take hold of the back of the seat or the post? A. The back of the seat; I aimed to catch the post.
“Q. The one in front or back of you? A. The one with my left hand.”
Whether plaintiff’s foot was fastened or rested loosely in the space between the wheel house and the side of the car seat at the time she made the effort with her right foot to step down upon the running board or side step of the car, the left foot had and could perform no other office than that of supporting the weight of her body until the right foot was landed on the step below. How the mere circumstance of the left foot being held fast in the position between the wheel house and the side of the car seat would have any tendency to cause plaintiff when using her right foot in stepping down upon the platform or running board below, to fall, we are at a loss to- understand. Plaintiff in her testimony does not undertake to explain how the left foot being fastened did or could cause her to fall forward from the car, and we know.of no physical laws when applied to the facts of this case, as to positions assumed and motions made by plaintiff, just previous to and when the fall occurred, that would indicate or justify the conclusion that the fastened condition of plaintiff’s left foot caused the fall after the manner described by her. Plaintiff’s action here is predicated upon the theory that her fall was occasioned by her foot becoming fastened between the wheelhouse and the side of the car seat and not that her injuries were incurred by reason of not being able to extricate her foot from its position áfter she began to fall. In this case plaintiff was required to show directly that the fastening of her foot in the manner indicated by her, caused her to fall; or she
Conceding that the wheelhouse as constructed on defendant’s car, causing an open space to be made between it and the side of the car, was a dangerous appliance, from the use of which on the car, injuries might reasonably result to passengers riding thereon, there was no testimony on this case given to warrant the conclusion that it was the responsible proximate cause of plaintiff’s injury. The action of the trial court in setting aside the verdict of the jury was then correct for that reason.
Defendant now contends that if it be conceded that plaintiff was injured as alleged, that still no proof of negligence on its part was shown, and for that reason its peremptory instruction should have been given directing a finding in its favor; and further that as the whole record in the case is now before the court it should render such judgment here as the trial court should have rendered when the case was before it. This question then presents itself: Is the wheelhouse or fender as used and constructed on defendant’s car, in such a manner as-to leave an opening or space three inches wide between its outer edge and the side of the car in which plaintiff’s foot was caught, causing her to be injured, a fact which of its own force established the allegation of negligence, or is the fender such an appliance that defendant could have reasonably anticipated from its use an accident therefrom, after the manner that plaintiff claims her fall was occasioned"?
The wheels on which this, as on almost all cars of this character, are thirty inches high and extend above and through the platform of the car some three or four inches and over these are placed a sheet iron fender, or as more commonly called, a wheelhouse in the shape of an oval, and each of these fenders occupy a part of the space under one seat, and the space between the seat and the one in front of or behind it. Between this fender and the side of the car, there is left a space from two and one half to three inches wide, into, which the passenger occupying a seat in the
While out of consideration for the high estimate placed upon the life and limbs of the citizen, all transportation companies employed in conveying their human cargoes from place to place in our cities and towns, are required among its many duties and obligations to so construct its car or vehicles used for that purpose-in such a way that passengers using and rid^ ing upon them may not only ride therein with safety, but may alight therefrom with equal protection when their destination has been reached; still the requirements of this rule do not go to the extent of imposing upon the transportation companies the duty of so constructing, fortifying and defending their cars with this, that or the other appliance or arrangement, that the passenger shall encounter no danger therein or meet with no possible accident when alighting therefrom.
The plaintiff owed to herself some consideration and to the company some obligation. She must use the car with its wheelhouse and the open space between the wheelhouse and the side of the car with reasonable circumspection and care, and with due regard to their existence, of which in this case she was informed by
While general or long continued use of an appliance without injury resulting therefrom, will not exempt the party using it from liability on that ground alone when an injury does actually happen from its defective or imperfect construction, still in this case, we think, that when to the long and successful use without accident, from this appliance on this and other similar cars of defendant, after the manner plaintiff claims to have been injured, and to the adoption and general use of like.appliances on similar cars by other transportation companies, where millions of passengers are carried daily, without accident or injury, thereby multiplying and augmenting its indorsement, it is shown that this appliance is open and visible to all
It is not negligence to fail to provide against any injury that might attend the use of an appliance, when that injury (after the manner of the happening of the one in controversy) could not have reasonably been anticipated, and when its liability to happen is only shown by its actual occurrence. Nor is the force of this rule in anywise weakened by merely showing that the particular .injury could have been avoided by the adoption of some other and different appliance or by a modified arrangement of or addition to the appliance in use at the time of the accident.
The test under the circumstances of an accident of the kind in suit, is not whether it might not have been avoided after the given way, if it had been anticipated, but whether under the circumstances it was negligence not to have anticipated and provided against its occurrence in the exercise of that reasonable precaution to prevent accident to passengers that would have been adopted by prudent companies managed by prudent officers prior to the accident.
The most stupid mechanic might suggest that if the space between the fender and the side of the car was filled in or boarded up, or if the car had been made
The adoption of cars with platforms six inches higher than the platform of this car, as was shown to have been done by one street car company in Kansas City, unquestionably would have made impossible an accident after the manner plaintiff alleges her injury occurred; but there is no evidence that that character of a ear is safer or is less liable to cause injury generally to passengers in attempting to alight therefrom, than ■the low car with its necessary protruding wheel to be guarded by a fender or a wheelhouse. The danger that might possibly result from the use of a fender over the wheels of a car is not the only question to be considered by the company in the construction of its cars, as other possible dangers might be multiplied tenfold in the endeavor to do away with the use of the fender by substituting the higher car. The use of the higher car necessitates more steps or a longer step in alighting from it to the ground than is required with the low car, such as defendant was using, thus suggesting new elements of danger from that point of view, and so the boarding up of the space between the fendér and the
In this case there is wanting not only proof of specific negligence in the construction of defendant’s car with its fender or wheelhouse, but facts or circumstances from which the use of a negligently constructed appliance could be imputed to defendant, except the single coincident of an injury to plaintiff occasioned from its use, which of itself is not sufficient. There • must have existed before some suggestion of danger, in order to make defendant liable as for negligence for its continued operation.
While it is quite difficult in many instances for the court to declare just when an appliance is of that
In this state of the record, what disposition should be made at this time of the case?
Prior to 1891 appeals from orders granting new trials to either party to a suit were not permissible, but each party was compelled to await the final judgment of the court before its action at any stage of the trial could be questioned in this court. But since the passage of the act amending section 2246, Revised Statutes, in that year, appeals may be prosecuted from an order granting a new trial, and this court’s power and duty in regard to such appeal is the same as in appeals from final judgments, according to the view of the writer. Section 2304, Revised Statutes, provides that in all appeals the appellate court “shall examine the record and award a new trial, reverse or affirm the judgment or decision of the circuit court or give such judgment as such court ought to have given, as to them shall seem agreeable to law.” No distinction is made between the different grounds of appeal, or appeals by different parties. All parties to the suit stand upon an equal footing, and this court in its review of the action of the trial judge upon the motion for a new trial (whether it be sustained on being bought here by plaintiff as in this case, or overruled when brought here by the defendant) should extend
As I understand the statute, this court should give such judgment here, as on the record the trial court should have given without regard to the question of who appeals, the manner of the case reaching this court, or who of the parties had control of the appeal. But independent of the statute, which I think clearly excludes the idea of a distinction between the different grounds of the appeal, every consideration for the
The judgment is accordihgly affirmed.
MEMORANDUM.
In this cause' plaintiff appealed from a ruling awarding a new trial to defendant on motion of the latter. The ground assigned of record
The learned trial judge may have been of opinion that the weight of the evidence was in favor of defendant, and that the verdict should therefore have been rendered for the defendant. The order of the trial court awarding a new trial was within the proper bounds of its discretionary power to determine the weight of evidence; and we think the circuit judgment should therefore be affirmed. Hewitt v. Steele (1893) 118 Mo. 463 (24 S. W. Rep. 440) ; Bank v. Wood(1894) 124 Mo. 72 (27 S. W. Rep. 554); Parker v. Cassingham (1895) 130 Mo. 348 (32 S. W. Rep. 487). In our opinion it is not necessary for this court (on plaintiff’s appeal) to go further into the merits of the ease at this time. The judgment should be affirmed.