Lange v. Metropolitan Street Railway Co.

BROADDUS, P. J. This is a. suit for damages alleged to have been sustained by plaintiff as a result of the defendant’s negligence. The undisputed facts are, that on the 15th day of July, 1907, the plaintiff was a passenger on one of defendant’s street cars, north bound, on McGee 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 of the car with his arm resting on the window sill looking west for a paper house, the place of his destination. That just after crossing Thirteenth [504] street the car collided with a wagon stationed near the east curb of McGee street, with sufficient force 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 approach closely to the wagon. And it is claimed by plaintiff as the car in question 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 collision 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 dashboard of the wagon, but not enough to erase the paint except a little at one place. We have stated the case from the standpoint of plaintiff’s evidence. The defendant offered a demurrer to plaintiff’s ease, and at the close of all the evidence asked the court to direct a verdict against the plaintiff. Both of these requests were overruled. The jury returned a verdict for the plaintiff and defendant appealed from the judgment of the court for the amount of the vérdiet. It is sufficient to say that under plaintiff’s theory of the case, if. sustained by the evidence, he was entitled to recover, and there was no error 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 the jury to say whether under the dr [505] cumstances of the case, the passenger is guilty of such 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 we think with good reason, that there was no substantial, credible evidence to sustain plaintiff’s ease. Had there been a collision of sufficient force to have 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 physically impossible. Although we know that strange and seemingly impossible things do sometimes occur, yet it is too great a tax upon our credulity for us to believe that plaintiff was injured in the manner claimed. The court erred in not directing a verdict for the defendant, therefore the cause is reversed. All concur.