Young v. Metropolitan Street Railway Company

• Decision Date: 03 June 1907
• Parties: ROBERT YOUNG, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, and KANSAS CITY, Appellants
• Court: Kansas Court of Appeals

103 S.W. 135

126 Mo.App. 1

ROBERT YOUNG, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, and KANSAS CITY, Appellants

Court of Appeals of Missouri, Kansas City

June 3, 1907

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED IN PART AND REVERSED IN PART.

John H Lucas, Ben T. Hardin and Halbert H. McCluer for appellant Metropolitan Street Railway Company.

The court erred in refusing to give defendant railway company's peremptory instruction asked at the close of plaintiff's evidence, and again at the close of all the evidence. Reno v. Railway, 180 Mo. 489; Guyer v Railway, 174 Mo. 350; Van Bach v. Railway, 171 Mo. 347; Bromg v. Railway, 194 Mo. 551; Saxton v. Railway, 98 Mo.App. 501; Logan v. Railroad, 96 Mo.App. 466; Railroad v. Locke, 14 N.E. 391; Hubbell v. Yonkers, 104 N.Y. 434; Nelson v Railroad, 30 Minn. 74; Mfg. Co. v. McCormick, 12 A. 273.

Edwin C. Meservey, City Counselor, and Francis M. Hayward Associate City Counselor, for appellant, Kansas City.

(1) The court erred as to the appellant, Kansas City, in not sustaining its objection to the introduction of any evidence because plaintiff's petition did not state facts sufficient to constitute a cause of action and in not sustaining the instruction of the city in the nature of a demurrer to the evidence on the ground the driver of the cart was engaged in a governmental duty of cleaning the streets. Murtaugh v. St. Louis, 44 Mo. 479; Ulrich v. St. Louis, 112 Mo. 138; McKenna v. St. Louis, 6 Mo.App. 320; Hill v. Boston, 122 Mass. 344; Tindley v. Salem, 137 Mass. 171; Eastman v. Meredith, 36 N.H. 284; Brown v. Vinalhaven, 65 Me. 402; Condict v. Jersey City, 46 N. J. 157; Nicholson v. Detroit, 129 Mich. 246; Kuehn v. Milwaukee, 92 Wis. 263; Ogg v. Lansing, 35 Ia. 495; Bryant v. St. Paul, 33 Minn. 289; Summers v. Com. Davies County, 103 Ind. 262; Love v. Atlanta, 95 Ga. 129; Conelly v. Nashville, 100 Tenn. 262; O'Rourke v. Sioux Falls, 4 S. Dak. 47; Levin v. Burlington, 129 N.C. 184; Hayes v. Oshkosh, 33 Wis. 314; Moynihan v. Todd, 188 Mass. 301; Kelley v. Boston, 186 Mass. 165; McFadden v. Jewell, 119 Ia. 321; Snider v. St. Paul, 51 Minn. 466. (2) The court erred in the introduction of testimony enlarging the issues beyond the allegation of plaintiff's petition. Thompson v. Railroad, 111 Mo.App. 465; Kuhn v. Freund, 87 Mich. 545. (3) The court erred in permitting a hypothetical question to be asked the medical expert, which substituted the opinion of the expert for the verdict of the jury. Glasgow v. Railway, 191 Mo. 347. (4) The court erred in giving instruction 12 asked by plaintiff and 2 of its own motion. Knight v. Kansas City, 113 Mo.App. 561; Smoot v. Kansas City, 194 Mo. 513; Marr v. Bunker, 92 Mo.App. 651; Railroad v. Railroad, 118 Mo. 599; Bergeman v. Railroad, 104 Mo. 77; Paddock v. Somer, 102 Mo. 226.

E. W. Shannon for respondent.

(1) The authorities submitted in appellant's brief are not pertinent to this case; neither can the defendant invoke the last chance doctrine in this case. The danger was there in full view, the car had come to a stop, the gripman was warned by Mr. Brown not to go down that hill, that something was on the track, the driver's back was turned toward the gripman who could see that he was oblivious to any danger and engaged in his duties shovelling dirt into his cart. Brod v. Transit Co., 115 Mo.App. 202; Gallagher v. Edison, Ill. Co., 72 Mo.App. 579; Griffen v. Manice, 82 Am. St. R., 630; 166 N.Y. 188; O'Neil v. Kansas City, 178 Mo. 91; Logan v. Weltner, 180 Mo. 340; Wood v. Railroad, 181 Mo. 450. (2) It has been the settled doctrine in this State that a municipal corporation is bound to keep its streets in a reasonably safe condition for travel. Culverson v. Maryville, 67 Mo.App. 343; Brennan v. St. Louis, 92 Mo. 482; Smith v. St. Joseph, 45 Mo. 449; Carrington v. St. Louis, 89 Mo. 208; Kiley v. City of Kansas, 87 Mo. 103; Denver v. Davis, 20 Am. Rep. 498, 86 P. 1027; Denver v. Porter, 126 F. 288; Missano v. New York, 6 Am. Neg. Rep. 652, 160 N.Y. 123; Quill v. New York, 5 Am. Neg. Rep. 423, 36 A.D. 476; Fuchs v. St. Louis, 133 Mo. 168; Donahoe v. Kansas City, 136 Mo. 657; Soulard v. St. Louis, 36 Mo. 546; Thurston v. St. Joseph, 51 Mo. 510; Badgley v. St. Louis, 149 Mo. 122; Bullmaster v. St. Joe, 70 Mo.App. 60; Waltemeyer v. K. C., 71 Mo.App. 354; Jordan v. Hannibal, 87 Mo. 673; Barree v. Cape Girardeau, 197 Mo. 382, 95 S.W. 300. (3) The evidence as to impairment of memory and eye-sight was competent and proper. Fry v. Chapin (Mich.), 7 Am. Neg. Rep. 67, 80 N.W. 797; Quirk v. Siegel Cooper (N. Y.), 6 Am. Neg. Rep. 644; 113 A.D. 464. (4) The hypothetical question asked Dr. Gayle on cross-examination was not improper; neither are the objections made to the question sufficient to so as to advise counsel and court of what was objectionable to the question, if anything. O'Neil v. Kansas City, 178 Mo. 91; Logan v. Weltner, 180 Mo. 340; Wood v. Railroad, 181 Mo. 450. (5) Instruction numbered 12 followed the petition and directed the jury not to exceed the sum of one hundred dollars. Tandy v. Transit Co., 178 Mo. 240; Blackwell v. Hill, 76 Mo.App. 46; Chartrand v. Railway, 57 Mo.App. 425.

OPINION

ELLISON, J.

The plaintiff's action was brought to recover damages from the defendants on account of personal injuries received, as he alleges, through their negligence. He obtained a joint verdict against them.

The defendant railway company operates street railways in Kansas City and the defendant city conducts a street cleaning department. The street railway in question passes over Ninth street between Walnut and Main streets, between which streets there is quite a steep grade, so steep, as is commonly understood, as to render it impossible to operate electric cars, and therefore what is known as cable cars were at that time being operated on that street. A cable car is operated by means of a steel cable or rope in the track beneath the surface to which a large metal grip is attached or released from, by means of what may be called a handle to the grip which extends up from the grip through a slot in the track up into the gripcar, where the gripman stands and operates the car. By manipulation of this handle the gripman can cause it to clasp the cable and thereby start and run the car, and he can also release the grip and thereby stop the car.

The story of the catastrophe as told by the witnesses varies in many details, as is usual when different persons relate their impressions of what took place and how it happened. There are some matters either not disputed, or so conclusively determined by the evidence as not, properly, to be a subject of controversy. Plaintiff and two companions were walking west along the sidewalk on the north side of Ninth street down the grade towards Main street at the foot of the hill. At the alley, in the center of the block, they noticed in the street a man, a mule and a cart, all belonging to the city street cleaning department, and the man was engaged in shovelling into the cart piles of dirt and rubbish which had been swept up off of the street. They had passed the alley, when the first and only thing plaintiff knew, he heard a crash and was knocked into a state of unconsciousness by the mule and cart being thrown against or upon him. A flagman was kept at the foot of the hill in Main street whose duty it was to signal cars coming to the top of the hill on Walnut street, if the way was clear for them to come down. On being signalled the gripman would tighten the grip on the cable rope which would have the double effect of carrying the car down the hill at the speed of the rope and holding the car so that it could go no faster than the rope. The record shows by undisputed evidence stated by witnesses of both plaintiff and defendants that after thus starting down the hill, the car could not be stopped. It could not be stopped, of course, without releasing the grip from the rope, and if the grip were released from the rope, the force of gravity was such that the car could not be stopped by the brakes.

When the car in question came from the east to the top of the hill at Walnut street, the city employee with his mule and cart was in the street perhaps half way down the hill. Witnesses differ as to the exact position of all three (the man, the mule and the cart) with reference to the track. We do not think it necessary, nor is it important to settle some of the points of difference. It is certain that when the car came to the top of the hill and just before starting down, the mule and cart, or at least the cart, were either partly on the north track, or sufficiently near it, to be in the way of the descending car. A witness for plaintiff, who was up on Walnut street, testified that he called the gripman's attention to the mule and cart. But that is unimportant in view of the fact that the gripman himself testified that he saw them. The evidence shows that by some means (whether by the gripman ringing the bell makes no difference) the man's attention was attracted to the car waiting to start down and to his mule and cart being too near the track so he took hold of the bridle and led the mule diagonally away, at the same time signalling the gripman either with his hand or shovel to come on. The flagman at the bottom of the hill also signalled him to start. He tightened his grip on the rope and started. But when the man had pulled the mule out of the way he turned to throw a shovel of dirt into the cart, and as he turned, the mule moved back towards the track and thus the collision occurred which resulted in hoisting mule and cart onto plaintiff who was descending the sidewalk near the curb as already stated. That the gripman did not start down the hill until he received the signal from the...