Summary
In Wilson v. Kansas City Public Service Co., Mo. App., 238 S.W.2d 73, plaintiff testified that he did look before stepping down from the streetcar and it looked safe to him.
Summary of this case from Bond v. Kansas City Transit, Inc.Opinion
No. 21476.
March 5, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, PAUL BUZARD, J.
Charles L. Carr, R. Carter Tucker, John Murphy, William H. Wilson, J. Gordon Siddens, C. Thomas Carr and Tucker, Murphy, Wilson Siddens, all of Kansas City, for appellant.
Kuraner, Freeman Kuraner, Kansas City, for respondent.
This is a suit brought by Jesse Wilson to recover damages for personal injuries sustained by him when he slipped on ice and fell while leaving one of defendant's streetcars. This is the second trial of this case in circuit court, the first having resulted in a verdict for plaintiff, which verdict was set aside by the trial judge on the weight of the evidence. Trial to a jury in this case resulted in verdict and judgment for plaintiff in the amount of $5000. Defendant appeals.
Defendant maintains a passenger loading station on the east side of a loop, near the intersection of 31st and Van Brunt. The loop constitutes the eastern terminus of 31st street line, eastbound cars turning here and heading westward on 31st. The loop is about 100 feet long, east and west, and 70 feet wide, north and south.
Plaintiff testified to the effect that the west side of the loop is 5 feet higher than the east, the ground sloping to the east; that the passenger platform is constructed of cinders or black top, is 4 feet wide and 60 or 70 feet long; that water had accumulated on the west side of the east rail, which rail is 3 or 4 inches higher than the west rail, and had been caused to "slop" over the east rail by passing cars, at the point where he stopped down; that it had frozen, and created a solid block of ice extending eastward, beyond the overhang of the car step, a distance of several inches; that he stepped on this ice, his foot slipped, and he fell, striking his head, and sustaining severe injuries.
His testimony was also to the effect that, on December 24, 1945 (the date the accident occurred), the weather was cold but not freezing, and the streets and sidewalks were not coated with hard ice; that previously snow and ice had accumulated on the streets and sidewalks, and on defendant's platform, but that on December 24, the temperature had been high enough to cause the ice and snow to deteriorate into a kind of slush, through which one's shoes would cut, so that walking was not especially hazardous; that the platform proper, where passengers boarded and left defendant's streetcars, was covered with a kind of slush but that there was no hard ice present; that he had boarded a car at this station, earlier that day, and had traveled over into Kansas City, Kansas, to make a purchase; that he returned on a streetcar, shortly before noon; that, when the car entered the loop, he left his seat and approached the rear door; that when the car stopped he stepped on the treadle, and took hold of the upright rail in the center of the doorway with his right hand holding a small package in his left hand; that the door opened and he stepped down on the step with his left foot; that this position was such that his body was carried forward as he stepped, he then had to release his hold with the right hand, as he stepped off the car; that his foot struck ice, just as he let go of the handrail; that his foot slipped out from under him and threw him back on his head, and "my shoulder and my back went onto the snow and ice"; that he did not remember anything else until the next day.
Since there is no question raised as to the amount of the verdict we will not go further into the matter of injuries.
He stated that the place where he stepped down was "4 or 5 feet back of the platform"; that it is about 4 inches lower than the platform at this point; that this low point runs into a gully and is a little lower at the center of the gully; that this depression was filled with ice on the day the accident occurred (defendant's operator admitted that a drain ran under the east rail of the point where plaintiff claims to have stepped down); that the ice was not slushy, but was solid, slick, and sloped to the east; that the east side of the car was tilted upward because the east rail was higher than the west; that while on the step he was unable to see immediately east of the step but could see the ground surface perhaps 18 inches east of the edge of the step.
Since defendant strongly urges that the evidence discloses that plaintiff failed to exercise ordinary care for his own safety in dismounting, his testimony in that regard will be dealt with more explicitly later.
Mr. Humphries, testifying for plaintiff, stated that, shortly before noon, December 24, 1945, he was boarding defendant's car, No. 946, at the front end, while it was stopped, at the loop; that he noticed a commotion at the rear door; that two men were lifting a man from the ground, in front of the rear door; that he mentioned the matter to the motorman; that he entered the car and observed, through the window, that the injured man was plaintiff, whom he knew, being a resident of that community; that he observed Mr. Wilson's son approach and lead his father toward a car parked nearby; that the platform was not covered with ice but was slushy; that the car was stopped about 9 feet south of the usual loading place; that the rear door was opposite a depression, or wash. (This wash is shown in pictures constituting plaintiff's exhibits, introduced in evidence.)
Clay Wilson, plaintiff's son, testified to the effect that he was driving past the scene of the accident; that he saw his father being assisted by two men, parked his car and assisted his father into it; that plaintiff was dazed and irrational; that he took him home; that the streetcar was stopped, headed north, instead of northwest; that cars usually stopped headed northwest to unload passengers; that the rear door was directly over "a little sort of wash or gully there"; that this was about two feet "behind the end of the regular platform"; that "there was slush and ice on the gully. The rest of the platform or the ground around there was just slushy"; that he had been at this platform on December 20 and noted that water had collected west of the east rail and covered the west rail; that the incoming cars would cause water to splash over the east rail into the gully or wash; that ice had formed at that point and water splashed over the ice.
Defendant offered the official United States weather bureau records, according to which it appears that, from December 19 through December 24, the temperature was never above freezing at the weather station in Kansas City; there was recorded a freezing drizzle and rain during the morning of December 24, forming a glaze 3/16 inches thick on trees, shrubbery, power lines, etc., and making streets and sidewalks icy and hazardous.
Defendant produced the testimony of two Kansas City police officers, of the accident squad, who stated that the streets, on December 24, were extremely slick and dangerous, resulting in many traffic accidents, in one of which one of the officers was involved. Defendant also produced several witnesses who lived in Kansas City and who, or members of their immediate families, were involved in accidents on December 24, due to the icy, slick and dangerous condition of the streets and sidewalks. They unanimously stated that the streets and sidewalks were not slushy but were coated with a hard slippery ice or glaze, all over town.
Defendant's foreman of transportation testified to the effect that there was no regularly established stopping place at this station, nor anywhere was there a sign or marker to indicate the exact spot at which cars would stop to receive and discharge passengers.
Defendant's operator, who operated cars at the loop on the day the accident occurred, stated that the usual stopping place was with the front door opposite a walk leading from the end of the platform to the east, across Van Brunt which would have placed the rear door several feet north or northwest of the depression above mentioned; that there is an underground drain running under the east rail of the track at the point where the gully is shown on the exhibits; that the east rail is higher than the west rail and might tend to catch and hold water behind it; that one may not leave the car by the rear door, after stepping on the treadle, until the operator releases a lever; that the door is opened by the operator to permit passengers to leave the car.
Defendant vigorously contends that it was guilty of no negligence in having stopped the car at the point where plaintiff and his witnesses stated that it was stopped; that there was no exact and regularly established place for stopping; that the entire area, including the platform, was covered with hard slick ice; and that cars might be stopped for the discharge of passengers at any point in the general area without exposing passengers to any danger not common to the entire area.
Defendant's position is that there was a solid sheet of ice all over the area, and that it was about as dangerous at one point as at another. However, plaintiff's theory and evidence was to the effect that the platform was covered with snow and slush, not ice, and that one's feet would cut through the slush; that at the point where plaintiff was invited to step down there was a solid block of hard, slick, sloping ice, upon which his feet slipped; and that it was not a reasonably safe place for discharging passengers, or as safe as the regular stopping place would have been. If the condition was as related by plaintiff's witnesses then a question was made for the jury as to whether or not the place at which plaintiff was invited to alight was a reasonably safe place. While defendant was not bound, as an insurer, to furnish plaintiff with an absolutely safe place to alight, it was its duty to select a reasonably safe place or to warn him of danger, unless the danger was plainly obvious. Moses v. Kansas City Public Service Company, 239 Mo.App. 361, 188 S.W.2d 538, 543; Caley v. Kansas City et al., 226 Mo.App. 934, 48 S.W.2d 25, 26. Those are questions for the jury under the evidence.
Defendant contends that plaintiff was guilty of negligence as a matter of law in that he failed to exercise ordinary care for his own safety, in alighting, by failing to hold onto the upright handrail in the doorway of the car until he had alighted, and that he failed to look before stepping down.
If defendant was guilty of negligence in inviting plaintiff to alight at a place not reasonably safe, under the circumstances shown in this case, nevertheless plaintiff was required to exercise ordinary care for his own safety else his recovery is barred. Curtis v. Capitol Stage Lines, Inc., Mo.App., 27 S.W.2d 747, 750; Heidland v. Sears-Roebuck, 233 Mo.App. 874, 883, 110 S.W.2d 795. It was his duty to look and to see what was plainly visible. Failure to do so constitutes negligence as a matter of law. Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 626; Woods v. Moore, Mo.App., 48 S.W.2d 202, 207.
It is contended that plaintiff did not retain a hold on the handrail until he had completed the act of stepping down. This was a vertical bar, extending from the ceiling to the floor, at the center of the doorway. There was no sloping or horizontal handrail. Plaintiff's version is that he took hold of the bar with his right hand and held it until he was forced to release it because of the downward swing of his body, when he started to step, or was in the act of stepping down onto the ground. Under such testimony this court cannot say that he reasonably could have retained the hold longer than he did. It was for the jury to say whether or not he was guilty of such negligence as should bar recovery, on that point.
However, it is earnestly contended that plaintiff, by his own testimony given at a former trial, and in a deposition, proved that he did not look before stepping down, although he knew that the ground surface was covered with ice and slush, as he said (with sheet ice as defendant contends), and that the car was not at its regular place for discharging passengers. It is contended that, even though he may have testified on direct examination, in the instant case, that he looked before stepping down, such testimony is nullified by his previous testimony, reaffirmed on cross-examination in this case.
In support of this contention defendant cites Dempsey v. City Light Traction Company, Mo.App., 256 S.W. 155, 157. It was there held that, where a party gave testimony at the trial, on a vital matter, which was at complete variance with and contradictory of that given on the same point at a prior trial of the same case, the question of his credibility was not for the jury to pass on, but was for the court, if he offered no reasonable explanation of the cause or reason for the contradiction. This was an application and extension of the rule laid down in Steele v. Kansas City Southern Ry. Co., 265 Mo. 97, 175 S.W. 177, 181, 182.
However, in a later appeal of the Steele case, 302 Mo. 207, 257 S.W. 756, the Supreme Court, en banc, held that, upon a subsequent trial, plaintiff is not absolutely bound by his testimony given at a former trial; but such testimony given at a former trial may be considered as impeaching that given at the later trial. The jury may decide which version it will believe. See Davidson v. St. Louis, San Francisco Ry. Co., 301 Mo. 79, 256 S.W. 169; McNatt v. Wabash Ry. Co., 341 Mo. 516, 108 S.W.2d 33; Short v. White, 234 Mo.App. 499, 505, 133 S.W.2d 1039.
However, in Epstein v. Kansas City Public Service Company, Mo.App., 78 S.W.2d 534, 536, on direct examination plaintiff testified to certain facts which made a submissible case but, on cross-examination, admitted that he had previously testified differently, and that his previous testimony was true. We held that he was bound by his testimony given on cross-examination. and that such testimony convicted him of negligence as a matter of law.
Plaintiff testified, on cross-examination in the instant case, as follows:
"Q. And did you look out before you stepped? A. Yes.
"Q. Where did you look? A. Out in front, in general.
"Q. In front of the door? A. Yes.
"Q. Did you look where you were going to step off? A. Yes.
"Q. Did it look safe to you? A. Yes.
"Q. And you looked down before you ever stepped? A. Yes I looked in the general direction.
"Q. And the condition, as you looked, it appeared safe? A. Yes. * * *
"Q. And before you stepped off the treadle you looked at the ground and where you were going to step? A. I didn't stop and stand there. I continued right down.
"Q. As you stood on this rear vestibule and this door opened, where everything was right out in front of you, did you look down where you would step when you would step off the car? A. As near as I could, yes.
"Q. Where did you look? A. Straight out from the step.
"Q. How far out? A. Well, anyway from 18 inches on out. * * *
"Q. How close could you see to the edge of the step as you were standing there * * *. A. In coming down you could probably see out 18 inches — that's as close as you could see down here.
"Q. Standing up at the top and looking down? A. Looking down like that. (Indicating.)
"Q. Did you look down at the area in front of the steps? * * * A. As close as I could look at it. * * *
"A. The ice was on the ground, protruding out about eight inches — and up within four inches of the step where I stepped down.
"Q. You say you saw all that? A. I seen it as I was in the act of stepping down.
"Q. How close was your foot from it when you saw it? A. Practically on it, in the motion of going down, possibly four inches, or three inches."
We think the above constitutes substantial evidence from which the jury could have found that plaintiff was in the exercise of due care for his safety when he stepped down.
However, the following questions and answers occurred in a deposition previously given by plaintiff:
"Q. The door was open, was it? A. No.
"Q. Sir? A. I got up off my seat, stepped down and stepped on the treadle there that opens the door, and the door opened and I took hold of the handle with my right hand and I stepped down with my left foot on the step and continued on with my right foot down and that was just about the time I let loose of the hand bar, why, I looked down and seen the snow and ice but it was too late then. I stood there and my feet flew out from under me.
"Q. And when you looked, what did you see? A. Well, I was just walking out like anybody else. I stepped down on this step and had hold of the handle and I never looked at the ground until about the time my foot was ready to hit it.
"Q. Never looked at the ground until you were ready to step on it? A. That's right.
"Q. And then as you looked down, your foot slipped, is that it? A. I could see ice and snow there. * * *
"Q. You could look as quick as the doors were opened, couldn't you? A. I presume I could, I don't know. It was just the natural way of getting off.
"Q. But I am asking you if, when the doors opened, you could look. A. If I had stopped and stood there I may have.
"Q. If you had looked you could have seen ice and snow there, is that it? A. Yes."
After having read the above questions and answers from the deposition, counsel for defendant continued:
"Q. It was the truth then? A. I presume so.
"Q. It is the truth now, isn't it? A. I guess so. If I had stopped and stood there I could have possibly seen it.
"Q. And when you put your right foot down is when your foot slipped? A. Just before it hit the ground I seen the ice there but it was too late. My feet flew out from under me."
Counsel also read questions and answers in testimony given at a former trial, and cross-examined with reference thereto, as follows:
"Q. Did you see any icy condition before you stepped down? A. Just a little — the looks of the road — it looked like some ice — snow or slush was there.
"Q. `Did you make those answers at that time? A. I presume so.' * * *
"Q. It was the truth then, wasn't it? A. As near as I know * * *.
"Q. Did you look out of the car? A. Just as I stepped down and the door opened and I started to step down and I was looking normally out, not looking down.
"Q. It that what you answered? A. You could look.
"Q. Just answer my question. Did you give that answer at that time? A. I guess I did but — * * *.
"Q. When this door opened did you look to see what the condition was? A. I was looking normally, and when the door opened, I stepped there. I didn't pay any attention and I stepped on the treadle and the door opened and I let loose of the rod and stepped down.
"Q. Did you look before it opened? A. I was looking out. * * *
"Q. And did you look? A. After the door opened I looked, and just as the door opened I started."
It cannot be said that the above testimony given by plaintiff in his deposition and in the former trial is so completely contradictory of the constitutive facts of his case, as established by his testimony in the instant trial, as to justify this court's application of the rule announced in Epstein v. Kansas City Public Service Company, supra. It was for the jury to determine whether there were variances or contradictions in his testimony; and, if there were, whether same were satisfactorily explained or whether he previously said, in effect, and on this trial reaffirmed, that he negligently failed to look before stepping.
Defendant contends that plaintiff's main instruction is fatally erroneous in that it assumed controverted facts, to-wit: (a) that the streetcar was stopped with the rear door at a point where it was not reasonably safe for plaintiff to alight; and (b) that it could have been stopped at a place, along the platform, that was reasonably safe. We have stated the evidence with reference to weather conditions prevailing, and with reference to the condition of the platform and of the point at which the rear door was stopped. This case was tried to a jury and, under the evidence, it was the jury's province to determine the true facts in connection with these controversial issues. A jury has twice found the issues against defendant, the first verdict having been set aside because of the weight of the evidence. The instruction required the jury to find the facts in this case; and it does not assume said facts to be true.
Defendant also criticises the instruction because of its alleged failure to submit facts relative to the condition of the platform and surrounding areas for the jury's determination, as a guide. The instruction is not bad on this ground. It does not permit the jury to speculate or guess, nor does it authorize a roving commission, as claimed by defendant.
No. 3 was the measure of damage instruction, and it is criticised for the reason that the alleged negligence mentioned in other instructions is incorporated therein by reference. Since we have found no error in such other instructions it follows that this criticism is not well founded.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.
On Motion for Rehearing
Defendant insists, in its motion for rehearing, that plaintiff's testimony given in a deposition and also at a previous trial, and reaffirmed at the instant trial, is so completely contradictory of the constitutive facts of his case, as to call for application of the rule declared in Epstein v. Kansas City Public Service Company, referred to in the main opinion, to which rule we adhere. With this contention there could be no disagreement were it not for the fact that plaintiff stated, in this trial, that he might have seen the ice upon which he stepped if he had stopped, stood, and looked; that he could not see the surface of the ground closer than 18 inches from the car stop; that the ice upon which he stepped protruded out from under the step a distance of about 8 inches. The evidence in this case was such as to permit an inference to the effect that the car, while standing still on the sloping ground, was considerably lower on the side opposite from that upon which passengers would alight when leaving it, and the step was "hiked up," so as to prevent plaintiff from observing the ice upon which he stepped until his foot was almost touching it. This explanation of his failure to see what defendant contends was plainly visible, we think, takes the case out of the rule as declared in the Steele and Epstein cases, and others of that type relied on by defendant. For that reason we hold that it was for the jury to determine whether or not plaintiff's explanation of the variance between his testimony given at this trial, that given in his deposition and that given in the former trial, is sufficient. If the jury believed his testimony in this respect it could have believed that plaintiff looked "normally out", as he stated, but could not and did not see the ice upon which he stepped but might have done so had he stopped, stood still, and looked. Whether or not he was guilty of negligence in having failed to see the ice upon which he stepped, because he did not stop and look, in order to see what might, possibly, have been visible to him, was for the jury to say.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.