Ebert v. Metropolitan St. Ry. Co.

• Decision Date: 06 October 1913
• Citation: 160 S.W. 34,174 Mo. App. 45
• Parties: EBERT v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

160 S.W. 34

174 Mo. App. 45

EBERT v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

October 6, 1913.

1. NEGLIGENCE (§ 93)—IMPUTED NEGLIGENCE —DRIVER OF VEHICLE.

Where decedent, a lad of 15 years, was employed to assist the driver of a grocery wagon and, while riding in the wagon from a livery barn into the street on the first day of his employment, received fatal injuries in a collision between the wagon and a street car, he having no authority over the driver nor control over the horse or wagon, the driver's negligence, if any, could not be imputed to him, and he was liable only for his own negligence.

2. STREET RAILROADS (§ 117) — COLLISION WITH VEHICLE — DEATH — CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for death of a lad, employed to assist the driver of a grocery wagon, resulting from a collision with a street car as the wagon was being driven out of a livery barn into the street, the distance being 22½ feet from the barn entrance to the track, whether decedent was guilty of contributory negligence which would bar a recovery was for the jury.

3. STREET RAILROADS (§ 103) — COLLISION WITH VEHICLE—DEATH OF OCCUPANT—HUMANITARIAN DOCTRINE—CONTRIBUTORY NEGLIGENCE.

Where a motorman in charge of a street car which came into collision with a vehicle coming from a livery barn into the street, resulting in the death of a lad riding in the vehicle, saw or by ordinary care could have seen decedent's perilous situation in time to have avoided the injury by ordinary care and with safety to his car and failed to do so, defendant would be liable under the humanitarian doctrine, regardless of decedent's contributory negligence, if any.

4. WITNESSES (§ 388) — CONTRADICTION — FOUNDATION.

Where the testimony of a witness was taken by deposition and it was known that he would not be present at the trial, it was not a sufficient foundation for a contradiction to ask him if he had not signed a certain paper containing a statement made to defendant's claim agent, and to ask him to identify his signature to such a paper, without calling his attention to its contents and giving him an opportunity at the time to explain the contradiction, if any.

5. STREET RAILROADS (§ 118) — COLLISION WITH VEHICLE—CAUSE OF INJURY—INSTRUCTIONS.

Where decedent was killed as the result of a collision between defendant's street car and a vehicle in which decedent was riding, a request to charge that excessive speed of the car would not authorize a recovery unless it was the sole cause of the injury was properly refused, since if such speed, combined with a failure of the motorman to keep watch and stop or slacken the car, caused the collision, defendant would be liable.

6. STREET RAILROADS (§ 118) — COLLISION WITH VEHICLE—DEATH OF OCCUPANT—INSTRUCTIONS.

Where decedent, while riding with the driver of a wagon, received injuries from which he died as the result of a collision between a street car and the wagon, a request to charge that, though the car was running at an excessive and unlawful speed and struck the wagon in which decedent was riding, yet if the driver of the wagon and decedent went on the track without looking or listening for an approaching car, and the motorman, by ordinary care, could not have stopped or slackened speed after he saw, or by ordinary care could have seen, decedent in a position of imminent peril, then the jury should find for defendant was properly refused for failure to differentiate between the negligence of the driver of the vehicle and that of decedent, since unless he was negligent there was no contributory negligence in the case.

7. STREET RAILROADS (§ 112)—INJURY FROM COLLISION — CONTRIBUTORY NEGLIGENCE — PRESUMPTION.

Where a lad, employed to assist the driver of a grocery wagon, was killed in a collision between the wagon and a street car as the driver was taking the rig from a livery barn into the street, a distance of 22½ feet, it should be presumed, in the absence of evidence to the contrary, that decedent was in the exercise of due care.

8. STREET RAILROADS (§ 118) — COLLISION — DEATH OF TRAVELER—INSTRUCTIONS.

Where, in an action for death of a lad from injuries sustained, while riding in a grocery wagon, in a collision with a street car as the wagon was being taken into the street from a livery barn, there was evidence that the motorman was driving the car at an illegal

speed and also had his attention attracted elsewhere as he approached the point of collision, a request to charge that the speed at which the car was moving and the conduct of the motorman prior to the starting of the wagon out of the barn were wholly immaterial if the car was running less than 20 miles an hour was properly refused.

9. TRIAL (§ 219) — REQUEST TO CHARGE — MISLEADING INSTRUCTIONS.

Where an action for death, resulting from a collision between a wagon in which decedent was riding and a street car, was based on the negligence of the motorman in operating the car and in failing to keep a lookout ahead, a request to charge that defendant was not liable if decedent's death was caused solely by an unfortunate accident, without any explanation or definition of the term "accident," was properly refused as misleading.

10. TRIAL (§ 260)—REQUEST TO CHARGE—INSTRUCTIONS GIVEN.

Where an instruction that the burden was on plaintiff to prove defendant's negligence and that it caused decedent's death by a preponderance of the evidence, viz., by the greater weight of the credible testimony in the case, was given, there was no error in refusing to charge that by burden of proof was meant that the facts and circumstances in behalf of plaintiff must be so clear and strong as to admit of no other reasonable conclusion than that decedent's death was caused by defendant's negligence.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Fannie Ebert, as administratrix of William F. Steinbrink, deceased, against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas and T. B. Buckner, both of Kansas City, for appellant. Brewster, Kelly, Brewster & Buchholz and Ben R. Estill, all of Kansas City, for respondent.

TRIMBLE, J.

William Steinbrink, an unmarried minor, 15 years of age, whose parents were dead, was injured by one of defendant's street cars striking and overturning a grocery wagon in which he was riding. He died as a result of his injuries, and his executrix instituted this suit under section 5425, R. S. Mo. 1909. She obtained judgment, and defendant has appealed.

The lad had started to work that morning for a grocer and, in company with Bert Hosman, a man who drove the grocer's delivery, went to a livery stable to get the horse and wagon with which groceries were delivered. This stable fronted west immediately on the property line on the east side of Indiana avenue in Kansas City, Mo., and was 223 feet north of the intersection of said avenue with Twenty-Sixth street. The stable floor was higher than the sidewalk, and a runway 16 feet in length extended from the floor to the street at the curb. Down this runway vehicles were driven in leaving the barn.

Indiana avenue was 40 feet wide, and the east track of defendant's car line was 22½ feet from the barn entrance. When Coontz, the stable hand, had harnessed the horse to the wagon, Hosman took the driver's seat and, with the boy either sitting beside him or standing in the wagon behind and holding to the seat, drove down this runway to the street. The wagon had almost cleared the track when a north-bound street car struck the rim of the left rear wheel, overturning the wagon and injuring the boy.

From Twenty-Sixth street north it was downgrade on Indiana avenue, and at a point 25 feet north of said street and 198 feet south of the livery barn was a "safety stop," which required all north-bound cars to make a stop at that point before proceeding further.

The negligence charged was that the car was being run at a dangerous rate of speed in excess of 20 miles per hour and in violation of an ordinance limiting the speed to that rate, also that no safety stop was made at the point required, and that the operator of the car saw, or by the exercise of ordinary care could have seen, deceased in a perilous situation in time to have stopped or slackened the car with safety to the passengers and avoided the injury, but that he negligently failed to do so. The answer was a general denial and a plea of contributory negligence on the part of the driver and of deceased in driving rapidly from the barn to the track without looking or listening for the approach of a car and so close in front thereof as to render a collision unavoidable.

Appellant's first point is that no proof was made that deceased was an unmarried minor. But the record shows to the contrary, so the point is valueless.

The next point is that deceased was guilty of contributory negligence in riding rapidly down the runway without looking or listening for a car. This renders it necessary to determine at the outset what negligence can be charged against the deceased as being contributory so as to bar a recovery. Under the peculiar circumstances of this case, the negligence that would bar a recovery must be that of the deceased himself, not that of Hosman, the driver. The deceased was a mere lad. He had no authority over the driver nor control over the management of the horse or...