Heinzle v. Metropolitan St. Ry. Co.

• Decision Date: 14 June 1904
• Citation: 81 S.W. 848,182 Mo. 528
• Parties: HEINZLE v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

81 S.W. 848

182 Mo. 528

HEINZLE v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 14, 1904.

STREET RAILROADS — INJURIES TO CHILD — SPEED — STOPPING CAR — EXPERTS — QUALIFICATION — HYPOTHETICAL QUESTIONS — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. A motorman, who had been engaged in running cars on a street car line for more than a year, and who was familiar with a street crossing, was sufficiently qualified to testify as an expert as to the distance within which a car approaching the crossing at a certain rate could be checked.

2. In an action for injuries to a child on a street crossing, a hypothetical question to an expert as to the checking of a car must embrace the time and space within which a like car could have been stopped by a reasonably skillful motorman after he discovered, or with reasonable care might have discovered, the child in danger, with due regard to the safety of passengers, and was too restrictive where he was asked if he was able to state in about what distance one of the cars carrying certain passengers could be checked in passing down the grade at such crossing at a certain rate.

3. Where, in an action for injuries to a child on a street car crossing, the evidence did not show that the failure to ring the bell was the proximate cause of the injury, but the evidence was conflicting as to speed of the car, a peremptory instruction for defendant was properly refused.

4. In an action for injuries to a six year old child, instructions applying the same rule to plaintiff, in determining her contributory negligence, as to one who had arrived at an age to possess ordinary discretion, were properly refused.

5. Where, in an action for injuries to a child on a street car crossing, the evidence was conflicting as to the speed of the car, and tended to show the motorman was not looking ahead of his car, it was for the jury whether, under the circumstances, the speed was dangerous and the injury occasioned thereby, or whether the motorman by ordinary care could have seen plaintiff's perilous position in time to have avoided the injury.

6. An instruction submitting to the jury the question as to whether plaintiff's next friend was regularly appointed is erroneous.

7. In an action for injuries by a street car, an instruction is defective in referring to the failure to keep the car under control, when no such averment was made in the petition.

8. In an action for injuries to a child by a street car, an instruction is erroneous that the employés were negligent if they failed to give the usual signals, after discovering the danger the child was in, to warn her of the approach, where there was no evidence to warrant it.

9. An instruction relating to the failure of the defendant's motorman to sound his gong to give warning when approaching a street crossing is properly refused, where such failure had no connection with the accident.

10. An instruction that plaintiff's negligence would not prevent a recovery, if the motorman and conductor could have seen the plaintiff by keeping a vigilant watch in time to have prevented the car striking plaintiff, should be modified by omitting the reference to the conductor.

11. Where plaintiff alleges that defendant's servants in charge of a car negligently and wrongfully approached a street crossing at an unusual speed, resulting in plaintiff being injured, it was proper to instruct to find for plaintiff, if she was exercising reasonable care for her own safety, and defendant was running its car at a speed which under the circumstances was negligent and dangerous, and in consequence thereof she was injured, though the speed did not exceed the rate fixed by ordinance.

Appeal from Circuit Court, Jackson County; Wm. B. Teasdale, Judge.

Action by Anthannette E. Heinzle, by her next friend, Martin Heinzle, against the Metropolitan Street Railway Company. From a judgment for the plaintiff, defendant appeals. Reversed.

John H. Lucas, for appellant. O. H. Dean, C. O. French, and Geo. W. Wright, for respondent.

BURGESS, J.

This is an action by plaintiff, a female between five and six years of age, for damages caused by being run over by one of defendant's street cars in the city of Argentine, Kan., on the 26th day of February, 1901. The amount of damages sued for was $25,000. The trial resulted in a verdict and judgment for plaintiff in the sum of $9,166.66. Thereafter in due time defendant filed its motion for a new trial, which being overruled, it brings the case to this court by appeal for review.

The accident happened at the crossing of Fifth street and Metropolitan avenue. The negligence charged in the petition is that defendant's servants and employés in charge of said car negligently and wrongfully approached said crossing at a rapid and unusual rate of speed, and negligently failed to ring the bell or sound an alarm as a warning to plaintiff of its approach; that defendant's agents and servants and employés in charge of said car negligently and wrongfully failed to keep a lookout ahead for pedestrians or other obstructions in or near defendant's tracks at said street crossing, as required by law; and, further, that defendant's servants and employés in charge of said street car saw the dangerous and perilous position of plaintiff on and near its said tracks in time to have checked or stopped said car before striking plaintiff, or by the exercise of ordinary care could have seen the perilous position in which plaintiff was situated in time to have done so.

The following state of facts is disclosed by the record: Fourth and Fifth streets run north and south. Fifth street lies west of Fourth. Metropolitan avenue runs east and west, and crosses Fifth street where the accident occurred. The defendant company owns and operates two different tracks running parallel on Metropolitan avenue; cars moving west occupying the north track, while cars moving east occupy the south track. A crosswalk spanned the avenue on the east side of Fifth street, from sidewalk to sidewalk, and another on the west side of Fifth street, which were 55 feet apart. The avenue is quite a steep downgrade from Fourth street to the crosswalk on the east side of Fifth street, and from that point west for some distance it is practically level. The avenue otherwise was smooth and the view unobstructed. At the southeast corner of the intersection of Fifth and the avenue, and upon the sidewalk line, stood the two-story building, known as the "Building and Loan Association," occupied by plaintiff and her parents. At the northeast corner, and upon the lot line, had been constructed the Fifth Avenue Hotel, a two-story building, fronting 75 feet on Fifth street, and extending east on the avenue to the alley between Fourth and Fifth. At the northeast corner was the office of the lumber company. The southwest corner was vacant. These streets, in the vicinity of their intersection, were traversed by vehicles, school children, workingmen, and other pedestrians, and Eastland, the motorman in charge of the car, at the time of the accident, knew all those conditions and surroundings. East-bound cars stopped at the crosswalk on the east side of Fifth street to receive and discharge passengers, and west-bound cars stopped at the crosswalk on the west side of Fifth street for the same purpose. It was at a point midway between these crosswalks, in the center of Fifth street, and between the rails of the west-bound tracks, that the plaintiff collided with one of defendant's west-bound street cars, resulting in injury and amputation of her right limb below the knee. The rate of speed at the time of the accident is estimated by the witnesses to have been from 3 to 35 or 40 miles per hour. A few minutes before the accident plaintiff, who resided at the southeast corner of the intersection of Fifth street and Metropolitan avenue, went on an errand necessitating the crossing of Metropolitan avenue and Fifth street at their intersection by her in order to reach the point of her destination. As the child and a small companion were crossing this intersection from the southeast to the northwest corner, in a diagonal and northwesterly direction, a street car approached from the east, downgrade, without giving any note of warning to the children as they were running toward the track. The avenue between Fourth and Fifth is 226 feet, with an alleyway on the north side about midway between Fourth and Fifth streets. Crosswalks 55 feet apart extend over the avenue, both east and west of the intersections of these streets. The Fifth Avenue Hotel, a two-story structure, stands on the building line of Fifth street and the avenue, extending east to the alley. The avenue from Fourth to Fifth street was smooth, and the view unobstructed between the building lines by any natural objects. The west-bound car was at or east of the alley in the rear of the hotel at the time the plaintiff and her companion started across the intersection of these streets. She was seen by a number of witnesses from the car after it turned west on the avenue near Fourth street, as well as by a number of witnesses situated around this intersection.

Mrs. Elizabeth Egan, a witness for the plaintiff, who was a passenger on the car, and who had traveled over the line every other day for a year preceding the accident, testified that the car was going faster on that trip than at any other time that she had noticed it going along the line; that the reason she noticed it, when the car was going down the hill from Fourth to Fifth street, when they turned, they were going so fast that she had a little boy on the seat with her, and held him to keep him from sliding off the seat; the car was going so fast he would have fallen right out of the seat, if something had not held him.

Charles Curth, who was on the sidewalk, on the south side of the avenue, about midway between Fourth and Fifth streets, testified substantially as follows:...