Barnard v. The Metropolitan Street Railway Company

• Decision Date: 17 May 1909
• Citation: 119 S.W. 458,137 Mo.App. 684
• Parties: IRA BARNARD, Respondent v. THE METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

119 S.W. 458

137 Mo.App. 684

IRA BARNARD, Respondent v. THE METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 17, 1909

Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.

REVERSED.

Judgment reversed.

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

(1) The first and principal error of the court in this case was its refusal to give a peremptory instruction in favor of defendant. Cole v. Railroad, 121 Mo.App. 613; Ellerman v. Transit Co., 102 Mo.App. 295; Warner v. Railroad, 178 Mo. 125; Cogan v. Cass Ave Railroad, 101 Mo.App. 190; Asphalt and Granitoid Construction Co. v. Transit Co., 102 Mo.App. 469; Hebeler v. Railroad, 132 Mo.App. 551. (2) There is but one inference to be drawn from plaintiff's acts and that is his failure to stop his horses was negligence on his part, and for that reason the demurrer at the close of plaintiff's evidence and the demurrer at the close of all the evidence should have been given. Warner v. Railroad cited above; Asphalt & Granitoid Constr. Co. v. Transit Co., cited above; Moore v. Railroad, 176 Mo. 528; Barrie v. Transit Co., 102 Mo.App. 87; Fanning v. Transit Co., 103 Mo.App. 151; Von Bach v. Railroad, 171 Mo. 338; Reno v. Railroad, 180 Mo. 469; Petty v. Railroad, 179 Mo. 666; Holwerson v. Railroad, 157 Mo. 216. (3) There is no last chance under the evidence in this case. Sharp v. Railroad, 161 Mo. 237; Tanner v. Railroad, 161 Mo. 512.

Martin J. O'Donnell for respondent.

(1) Under any circumstances when a human being is in a situation of danger and he is so far away from that danger that, by the exercise of ordinary care on the part of those in charge of the dangerous instrumentality, injury may be averted, but such care is not exercised and injury results, then the party is responsible for the injury, regardless of the manner in which the dangerous situation was brought about. Hilz v. Railroad, 101 Mo. 54; Kelly v. Railroad, 101 Mo. 75; Morgan v. Railroad, 159 Mo. 262; Fearons v. Railroad, 180 Mo. 208; Moore v. Transit Co., 194 Mo. 12; Ross v. Railroad, 113 Mo.App. 605; Zander v. Transit Co., 206 Mo. 464; Feeney v. Railroad, 113 Mo.App. 605; Klockenbrink v. Railroad, 172 Mo. 689; Cole v. Railroad, 121 Mo.App. 605; Beckenwald v. Railroad, 121 Mo.App. 595; Everett v. Railroad, 112 S.W. l. c. 685; Chamberlain v. Railroad, 133 Mo. 600; McNamara v. Railroad, 114 S.W. 52; Epstein v. Railroad, 197 Mo. 733. (2) Whether person in danger be conscious or unconscious of the approaching peril is immaterial. When it is obvious that a driver is prevented by his surroundings from leaving the track or is unreasonably dilatory in doing so, it becomes the duty of the motorman to employ all reasonable means to avoid a collision. Ross v. Railroad, 132 Mo.App. 478; Tartt v. Railroad, 99 F. 369; Shanks v. Transit Co., 101 Mo.App. 706; Cole v. Railroad, 113 S.W. 685. (3) It was the duty of defendant's motorman in operating its car in the nighttime, in a populous part of the city, to have been on the lookout for the safety of persons who might be on its track, and to have had his car under control for any danger that might present itself. Funck v. Railroad, 113 S.W. 695; Klockenbrink v. Railroad, 172 Mo. 687. (4) Whenever it appears that the operator of the instrument of injury in the exercise of reasonable care should have been warned by the appearance of the situation confronting him, that a human being was in peril, it then became his absolute duty to make every reasonable effort to avoid the injury, regardless of whose fault brought about the peril. (5) It is the duty of train operatives to take notice of the usages and conditions actually existing on the streets over which they operate their cars; they are required to anticipate the probable presence of persons on the track at such places, to be on the lookout, and to regulate their actions accordingly. And whether this duty is performed or not is a question for the jury to determine. Garner v. Trumbull, 94 F. 321; Fearons v. Railroad, 180 Mo. 227. (6) The circumstances that the wheels were sliding on the rails was sufficient warning to the motorman that plaintiff was in peril and when by the exercise of reasonable care he could, having seen that the wheels were sliding, it became his absolute duty to use all the means at his disposal to avert the collision, and whether he did so or not was a question for the jury to determine. Kinlen v. Railroad, 115 S.W. 527; McKenzie v. United Railroads, 115 S.W. 13; Murphy v. Railroad, 46 N.Y.S. 283. (7) The peremptory instruction was properly refused. Cooney v. Railroad, 80 Mo.App. 226; Ross v. Railroad, 113 Mo.App. 600; Waddell v. Railroad, 113 Mo.App. 685; Heinzle v. Railroad, 182 Mo. 528; Kinlen v. Railroad, 115 S.W. 527; McKenzie v. Railroad, 115 S.W. 52; Meeker v. Railroad, 178 Mo. 173; Jett v. Railroad, 178 Mo. 664.

OPINION

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries alleged to have been caused by the negligence of defendant. In addition to a general denial, the answer alleged "that if plaintiff received any injuries at the time mentioned in said petition, the same were caused by plaintiff's own fault and negligence." A trial to a jury resulted in a verdict and judgment for plaintiff and the cause is here on the appeal of defendant. Material facts disclosed by the evidence of plaintiff are as follows:

The injury occurred after dark in the evening of September 7, 1907, on Westport avenue in Kansas City and was caused by a head-on collision between a wagon driven by plaintiff and an electric street car operated by defendant on its Westport line. Plaintiff was driving a good, strong team hitched to a heavy dirt wagon which carried a load of about fifteen hundred pounds consisting chiefly of baled hay. He was going west on Westport avenue and drove on the north track of defendant's railway (there are two tracks in this street) until a west-bound car came up from behind and caused him to drive on to the south track to permit the car to pass. He chose to travel on the part of the street covered by the car tracks because the pavement on each side was in very bad repair. When he reached the south track, he looked ahead and saw a car approaching from the west. The car was about a block and a half away and was running at a good rate of speed. Plaintiff immediately endeavored to return to the north track to avoid this car and to that end, turned his horses towards the north. The wagon wheels were inside the rails of the track and the rails were somewhat elevated above the pavement. The result of this condition was that the wagon wheels did not go over the north rail but remained inside sliding along. Plaintiff says he realized he was in danger of being struck and did all he could to drive off the track, but the wheels would not climb the rail and slid along for about one hundred and fifty feet, when the collision occurred. Witnesses for plaintiff state that the speed of the car was not appreciably reduced before the collision; that the wagon was visible to the motorman a distance of six hundred feet or more and that under all the circumstances the car, running at twelve miles per hour, could have been stopped in one hundred and seventy feet. The front end of the car struck the front end of the wagon tongue, the point of contact being about eighteen inches north of the center of the car. The tongue was not broken, nor did it penetrate the car. The impact had the effect of pushing the wagon back four or five feet when both vehicles stopped. The load in the wagon was not displaced, neither vehicle was damaged, but plaintiff was thrown from his seat to the pavement and injured. The near horse fell into and broke the fender of the car, the off horse was far enough to the north to escape being struck. The force of the impact was sufficiently violent to demolish the harness. Further, it appears that Westport avenue, though not in the heart of the city is a much-traveled thoroughfare, and that usually the travel is heavy at the hour of the injury in question.

The motorman, introduced as a witness by plaintiff, testified that he was running at a speed of about twelve miles per hour, the customary rate in that part of the city; that he was keeping a close lookout ahead; that owing to the presence of an overhead arc light in the street in front of him, he could not and did not see the wagon until it emerged from the darkness beyond into the space illuminated by the arc lamp; that the car and wagon then were about one hundred and twenty-five feet apart; that he immediately applied the air, then reversed the power, and by these efforts, reduced speed to the extent that the car had almost stopped when the collision occurred.

The specifications of negligence in the petition are as follows "First. In running said car at a high, dangerous and excessive rate of speed, without regard for the safety of this plaintiff and the general public using said street. Second, in failing to sound the gong, or otherwise notify plaintiff of the approach of said car, and thereby give plaintiff an opportunity to avoid the collision therewith. Third, in failing to see the team and wagon, in which plaintiff was riding, on or near defendant's said track, in time to have stopped said car before it collided with said team and wagon, when, by the exercise of reasonable and ordinary care, defendant's servants and employees could have seen said team and wagon, in time to have stopped said car before it collided with said team and wagon; or in failing to stop said car, after becoming aware of the dangerous and perilous position of said plaintiff, his said team and wagon, before said car collided therewith, when, by the exercise of reasonable and ordinary care, defendant's servants...