Johnson v. Metropolitan Street Railway Co.

ELLISON, P. J.

Plaintiff’s action is for damages on account of the death of her husband, caused by alleged negligence of the defendant Street Car Company. She recovered judgment in the trial court.

It appears that on the night of the 19th of May, 1909, at the corner of Twelfth and Mulberry streets in Kansas City, Missouri, defendant was operating cable cars on Twelfth street with “running boards” along the length of the car and these were operated or used as a step on or off the car by those desiring to take passage or to alight. The negligence charged is that the deceased attempted to get aboard a car at the point *299 named and after lie stepped np on to the running board and before he had time to get into the car, or onto a seat, defendant’s servants suddenly started the car with a sudden and violent jerk, which threw him upon the street and track where he was run over and almost instantly killed.

After the action was instituted, plaintiff filed the following motion: “Comes now the plaintiff in the above entitled cause and prays the court that said cause be dismissed.” There was entered on this motion of the court record, the following: “Now on this day comes the plaintiff and filed dismissal of this suit, and it appearing to the court that the costs herein are paid, it is by the court ordered and adjudged that this cause, be, and the same is now dismissed.”

The following is the part of the statute cited by defendant: “. . . And provided, that if any such action shall have been commenced within the time prescribed within this section, and the plaintiff therein take or suffer a nonsuit, . such plaintiff may commence a new action from time to time within one year after such nonsuit suffered.”

Defendant now insists that plaintiff did not take a nonsuit as contemplated by the statute; that her motion amounted to a retraxit, as known in common law procedure and that, in consequence, she renounced not only her then pending suit, but also the cause of action itself. We think not. There was no judgment of retraxit. And the mere dismissal of a case without a trial on the merits, is not a renunciation of the cause of action and suit may be reinstituted within the time limited by statute. [Couch v. Harp, 201 Mo. 457 ; Meddis v. Wilson, 175 Mo. 126 ; Mason v. Railroad, 226 Mo. 212 .]

The evidence was ample to support the verdict. Deceased had stepped on the running board near the rear end of the grip car while it was standing. Then it started with a jerk of such suddenness and .violence *300 as to throw him partially between the grip and the other car and thence to the street and track.

Criticism of plaintiff’s first instruction has no merit. There is an effort made to show that it sub-' mitted whether the car started “suddenly” instead of “with a jerk” as charged in the petition. The instruction reads “suddenly and with great force” and by reason thereof deceased was thrown, etc. In the connection used, the criticism makes a distinction where there is no practical difference.

No ground for interference has been shown and the judgment is affirmed.

All concur.