McNally v. Metropolitan Street Railway Co.

129 S.W. 464, 145 Mo. App. 127, 1910 Mo. App. LEXIS 427

• Court: Missouri Court of Appeals
• Decided: June 13, 1910
• Status: Published

Opinion

ELLISON, J.

Plaintiff was a passenger on one of defendant’s street cars and was injured in attempting to alight therefrom. She thereupon instituted this action for damages and recovered judgment in the trial court.

Plaintiff got on the car at Nineteenth and Troost avenue, Kansas City, Mo., at about seven o’clock p. m., November 21, 1907, desiring to go south to Twenty-sixth street, where she intended to get off and visit a sister. She was a stranger to that part of the city and told the conductor when she got on that she desired to get off at Twenty-sixth street. Just after the car had passed Twenty-fifth street, the conductor, who was in the rear vestibule of the car, called out “Twenty-sixth street,” and the car presently stopped, when the plaintiff arose from her seat, came out through the vestibule and had stepped one foot on the car step, with the other -raised, when the car was suddenly started forward and she was thrown to the street, whereby she received severe and permanent injury.

It appeal’s, however, that the place where plaintiff was thus thrown off was not at the usual stopping place for Twenty-sixth street, that, in fact, it was, perhaps, one hundred feet north of that street. But it was shown that it stopped shortly after the conductor’s call, and that plaintiff then proceeded to leave the car by passing the conductor and that while in the act of getting off, the car was started without warning, and she was thrown as stated. It was after dark, plaintiff was not acquainted with the street, and she had a right to assume, in the absence of warning to the contrary, that the car had stopped in response to the call of Twenty-sixth street. It was a part of defendant’s theory that she got off a running car and thereby contributed to her own injury. There was evidence tending to show that she did; but there was abundant evidence in her favor to the contrary, and we, of course, must accept as true whatever the evidence in her behalf tends to prove.

It is insisted that the court erred in admitting evidence that plaintiff was the mother of six children. Her answer to that effect was not responsive to the question asked, and no objection was made by defendant. She was then asked what were the ages of the children, and objection to that was sustained.

Afterwards plaintiff was asked what was the occupation of her husband and she answered he was a day laborer at a packing house. The objection to this was overruled. We are, however, satisfied from the record that such statement is not sufficient ground upon which to base a reversal of the judgment.

We think there is no merit in defendant’s point that plaintiff had no right to get off at the place she attempted, that not being the stopping place for the discharge of passengers. The cases cited by defendant, especially Corum v. Railroad, 113 Mo. App. 631, have no application to the facts in this case. Plaintiff was practically invited to alight at the place she was thrown off. The conductor called the street and then the car stopped, and she, unacquainted with the street, arose and passed by him, he making no objection to her getting off.

The demurrer to the evidence was properly overruled. We readily concede that physical facts will overcome and control testimony given by witnesses, but we do not think there was such conflict between the two kinds of evidence as to justify us in rejecting the evidence of witnesses showing how the occurrence happened.

Objection is made to the first instruction for plaintiff on the ground that it submitted the hypothesis that the conductor, in the exercise of reasonable care, could have known that plaintiff was leaving the car. It is suggested that it should have submitted whether the conductor actually knew. We think that in the circumstances of plaintiff’s coming out of the car, and what caused her to come out, at that place, the instruction was proper.

The judgment was for the right party and is affirmed.

All concur.