#### EDITH BELL WITTERS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.

Kansas City Court of Appeals,

November 7, 1910.

1. STREET RAILWAYS: Negligence: Injuries on Curve. Plain-was injured while a passenger on a crowded electric street ear going around a curve. She was standing in the aisle holding on to a strap, and was thrown down and against an arm of a seat while the car was going around the curve at a rapid rate of ispeed. Other passengers were thrown down at this curve in a similar' manner, and some more or less thrown about. It was shown that motormen in charge of electric cars can moderate its speed in going over a curve, so as not to endanger the passengers. *Held,*that the demurrer to the evidence was properly overruled.

2. -: -. Where the speed of an electric car going around a curve is unusual and unavoidable, then the passengers thereon assume the risk of being injured, but where the speed is usual, and not unavoidable, and at the same time dangerous to passengers, they do not assume any such risk. -

Appeal from Jackson Circuit Court. — Ho». *James E. Goodrich,*Judge.

Apkte.m'ed.

*John*H. *Lucas*and *F. G. Johnson*for appellant.

(1) The demurrrer should have been sustained, because there was no evidence of any unusual, negligent or dangerous speed of said car in rounding said curve. Hite v. Railroad, 130' Mo. 132; 2 White on Personal lujuries on Railroads, sec. 661; Pryor v. Railroad, 85 Mo. App. 367; Bartley v. Railroad, 148 Mo-. 124; Allen v. Transit C’o., 183 Mo. 435; Sexton v. Railroad, 98 Mo. App. 495; Moser v. Railroad (Ky.), 74 S. W. 1909; Burns v. Railroad (Mass.), 66 N. E. 418. (2) The court erred in giving instruction No. 2p., because it enlarges the- issues made by the pleadings and unsupported by *489the evidence. Detrich v. Railroad (K. C. Ct. App., not. yet reported); Beave v. Transit, 212 Mo. 331; Roscoe v. Railroad, 202 Mo. 576; Orcntt v. Century Bldg. Co., 201 Mo. 424; McGrath v. Transit Co., 197 Mo. 97. (3) The court erred in giving instruction No. 3p., because it enlarges the issues made by the pleadings, and is unsupported by the evidence. Detrich v. Railroad (K. C. Ct. Appc); Beave v. Transit Co., 212 Mo. 331; Degonia v. Railroad, 123 S. W. 807; Black v. Railroad, 217 Mo. 672. (4) "Where specific acts of negligence are pleaded, it devolves upon the plaintiff to prove the acts of negligence pleaded, and, if she recover at all, it must be on the specific acts of negligence pleaded, and not otherwise. Detrich v. Railroad (K. C. Ct. App.); Black v. Railroad, 217 Mo. 672; Beave v. Railroad, 111 S. "W. 52; Kennedy v. Railroad, 128 Mo. App1. 297. (5) The rule of *res ipsa loquitur*does not apply where the acts of negligence complained of are specifically pleaded. See authorities cited under point 4. (6) It is not negligence not to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated, and would not, unless under exceptional circumstances have happened. Brewing Assn, v. Talbot, 141 Mo. 674; Chandler v. Gas. Co., 174 Mo. 327; Fuchs v. St. Louis, 167 Mo. 626; Ray on Negligence, p. 133; Strack v. Tel. Co., 116 S, W. 526; 29 Cye., pp. 493-495; Webb’s Pollock on Torts (enlarged Am. Ed., 45-46). (7) An instruction not based on the evidence is erroneous and should not be given. Hahn v. Cotton, 136 Mo. 216; Smith v. City of Sedalia, 152 Mo. 283; Press B. *&*M. Co. v. Buick & Q. Co., 151 Mo. 501. (8) Statements of witnesses contradictory of general knowledge, or opposed to physical facts, or contrary to the operation and effect of natural forces should not be accepted by any court. Scroggins v. Railroad, 120 S. W. 731; Strack v. Tel. Co., 216 Mo. *490601; Browning v. Railroad, 106 Mó. App. 729; Fuchs v. City of St. Lonis, 167 Mo. 620; Demaet v. Storage Co., 121 Mo. App. 92; Warner v. Railroad, 178 Mo. 131. (91) Where the preponderance of the evidence against the verdict is so strong as to> raise a presumption of passion, prejudice or gross negligence on the part of the jury, the appellate court should set aside such verdict. Lehnick v. Railroad, 118 Mo-. App. 611; Spohn v. Railroad, 87 Mo. 84; Price v. Evans, 49 Mo. 336; Fugler v. Bothe, 117 Mo. 501.

*Henry J. Latshatv*and *M. B. Aaron*for respondent.

BROADDIJS, P. J.

This is a suit to recover damages for injuries sustained by plaintiff by reason of the alleged negligence of defendant while she.was a passenger on one of its street cars.

The injury was received at Twenty-second and Charlotte streets in Kansas City, Missouri, at about the hours of 6:20 o’clock p. m. on January 10, 1907. At about 6 o’clock it was the habit of plaintiff who was employed in Peck’s dry goods store in said city to quit her work and take passage on what was known as the Holmes street electric cars, near the corner of Eleventh and Main streets. She was accompanied as usual by another young woman named Laula Hester. This was what is known as a single truck car with the wheels attached to the .body of the car. The car had one longitudinal seat on each side extending almost from one end to the other; the seat on the west side of the car extended to within about two feet of the rear end, on the end of which there was a brass arm extending up> a short distance to prevent people from falling off; that at the time plaintiff boarded the car Miss Hester obtained a seat but there was no other vacant and plaintiff was compelled to stand up and *491support herself by holding on to a strap suspended from overhead. There was a curve in the defendant’s track at Twenty-second and Charlotte streets with which the plaintiff was familiar. Plaintiff’s evidence tends to show that the ear in entering said curve was going at a rapid rate of speed; that the jar of-the car was so great that it jerked plaintiff’s hand from its hold of the strap and threw her down; that in falling she struck the brass arm at the end of the seat and was thereby injured.

Plaintiff testified that she was holding tight to the strap at the time and steadying herself the best she could. The evidence of Miss Hester corroborated that of plaintiff as to the facts stated. There was evidence to the effect that other persons were thrown down in a similar manner at said curve. It also appeared that the other passengers in the car were more or less thrown about. The plaintiff resumed her journey to her home and suffered some during the night, but went to the store the next morning but was unable to continue work and went to the sick room kept at the store, but in the evening went home. A doctor was called who attended her for six weeks. She was severely injured and suffered much pain.

The gist of negligence alleged is as follows: “Plaintiff states that while she was thus being carried as a passenger as aforesaid, and while the car upon which she was then being carried as a passenger was going around or through, or entering into the aforesaid curve at Twenty-second and Charlotte streets, plaintiff was thrown with great force and violence from her position in said car, viz.: A standing position therein, against the seats and the backs thereof in said car, and greatly injured as hereinafter set forth, all on account of the carelessness and negligence of defendant in this, to-wit: Defendant carelessly and negligently caused and permitted the aforesaid car to come into said curve and .start around said curve, and *492through said curve and on said curve at an unnecessarily high and dangerous rate of speed, and at a negligently high and dangerous rate of speed, thereby throwing plaintiff from her standing position in said car as above set forth.”

Defendant demurred to plaintiff’s case, which was overruled. The plaintiff recovered judgment in the sum of one thousand dollars, from which defendant appealed. Appellant claims that plaintiff was not entitled to recover under the evidence, and that: “The demurrer should have been sustained because there was no evidence of any unusual negligent or dangerous speed of said .car in rounding said curve.” In Hite v. Metropolitan Railway Co., 130 Mo. 132, the facts and holding of the court is stated as follows: “Plaintiff while a passenger on defendant’s cable car was thrown off by a sudden jerk while rounding a curve and sustained injuries therefrom. She knew that the car went at a greater rate of speed when going around the curve and was careful to avoid being thrown off. There was no defect in the construction of the road nor in its appliances and the defendant’s employees were not negligent. The evidence also showed that the only practicable way to round the curve was to go at the speed of the rope, that the jerking or jarring of the ear was incidental to the operation of the road and that no other method had been discovered to avoid the difficulty. Held, that defendant was not responsible for plaintiff’s injuries.” This and that case in some respects are very much alike, in other respects greatly dissimilar. Plaintiff was aware that sometimes if not habitually the car passed around the curve at a fast rate of speed and that she was in view of that fact careful to avoid being thrown down and injured. Here the similarity of the cases end. This was not a cable, but an electric car and it was not necessary that its speed should be so great as to cause such jerking or jarring as to effect passengers in their *493■seats and to throw down others who were carefnl to avoid snch danger. It was shown 'and it is a matter of common observation that the motorman in charge of an electric car can moderate-its speed in going over a curve so as not to endanger the passengers. •

We cannot sanction the theory of the appellant that if the speed of the car was not unusual of which plaintiff was cognizant there can be no recovery. If the speed was unusual and unavoidable as in the case referred to the rule would prevail; for the reason that the passenger in such a case assumed the risk. But the speed although usual but not unavoidable, and at the same time dangerous to the passenger, he does not assume the risk, and' the act is negligence. The theory of the appellant in effect is equivalent to saying habitual want of care is not negligence. Such a course would exonerate the carrier from that high degree of care the law imposed upon it to safely carry its passengers.

The appellant further contends that the plaintiff’s instructions enlarged the issues made by the pleadings, but we think not, and the specific acts of negligence pleaded were sustained by the evidence. And we do not believe that the preponderance of the evidence against the verdict was so strong as to raise a presumption of passion or prejudice on the part of the jury. But on the contrary we find that the verdict is sustained by substantial and convincing testimony. Affirmed.

All concur.