Abbott v. Kansas City Elevated Ry. Co.

• Decision Date: 18 June 1906
• Parties: ABBOTT v. KANSAS CITY ELEVATED RY. CO.
• Court: Missouri Court of Appeals

97 S.W. 198

121 Mo. App. 582

ABBOTT v. KANSAS CITY ELEVATED RY. CO.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

Rehearing Denied November 5, 1906.

1. STREET RAILROADS—INJURIES TO TRAVELERS —CONTRIBUTORY NEGLIGENCE.

Plaintiff, shortly after dark, was driving his two horses and wagon along defendant's street car track, going in the direction the cars ran, with his cap pulled down over his ears, though he knew that a car might overtake him from the rear at any time. There was no necessity for his being on the track, there being ample room in the street proper, and he was struck and injured by a car approaching him from the rear. Held, that plaintiff was guilty of contributory negligence.

2. SAME—HUMANITARIAN DOCTRINE.

Plaintiff was struck and injured by a street car approaching him from the rear as he was driving on defendant's street car track at night. He testified that it was dark, and that when he looked back, several times, he did not see a car, until finally, when he heard a noise, he again looked, and saw the car only 30 feet away, which he could then distinguish only as some dark object, which struck his wagon within the time he could hit his horses. Held, that the motorman was not guilty of negligence in failing to see plaintiff's wagon in a position of peril in time to have avoided striking the same.

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

Action by Newton J. Abbott against the Kansas City Elevated Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John H. Lucas, Ben T. Hardin, and Halbert H. McCluer, for appellant. Boyle, Guthrie & Smith, for respondent.

ELLISON, J.

This is an action for personal injury received by plaintiff from a collision with one of defendant's street cars occurring on Quindaro boulevard, at about 100 feet east of Tenth street, in Kansas City, Kan. The judgment of the trial court was for plaintiff.

The evidence shows an undoubted case of contributory negligence on the part of the plaintiff. McGauley v. Railway Co., 179 Mo. 583, 79 S. W. 461; Theobald v. Transit Co., 191 Mo. 395, 90 S. W. 354. Though this is not admitted by him, it is practically conceded, and the ground upon which he seeks to uphold the judgment is based upon the humanitarian doctrine, and so he contends that, notwithstanding his contributory negligence, yet the defendant either saw his position of peril, or should have seen it, in time to have avoided the collision. It appears that on the 2d day of February at 15 minutes past 6 o'clock in the evening, it being shortly after dark, the plaintiff was driving his two horses and wagon on and along defendant's track, going east in the direction the cars ran. There was no necessity for his being on the track, as there was ample room in the street proper. He wore a cap pulled down over his ears, though he knew that a car might overtake him from the rear at any time. On the question of whether defendant's motorman saw his position of peril in time to have avoided striking the wagon, the testimony given by plaintiff himself is of great importance. The motorman said he did not see him in time, on account of the darkness and of an electric light intervening between the car and the wagon, until too late to stop. Plaintiff, in order to show that the motorman either saw him or might have seen him, endeavored to make it appear by some witnesses in his behalf that it was not yet quite dark, and that looking ahead would have discovered him to be on the track. At Tenth street there was an electric light, composed of several bulbs under a reflector, suspended at the side of the street, which made it difficult, if not impossible, to see an object beyond the glare cast upon the street. This statement is not admitted by counsel; but we think the plaintiff's evidence establishes that, on account of darkness alone, or of the darkness and the particular situation of the light between the car as it approached Tenth street and plaintiff as he was beyond Tenth street, his wagon could not be seen. He testified that he got on the track a short distance east of Eleventh street, and that he was struck a short distance (100 feet) east of Tenth street; that he looked back several times between where he got on and Tenth street, and at the latter street, and did not see a car; that after he passed Tenth street he heard a noise, and looked back over his shoulder and saw "a dark object" only 30 feet behind him; and that he only had time to hit his horse when the car struck his wagon.

As already intimated (plaintiff himself being negligent), the only ground upon which he can base an argument in support of the judgment is founded upon the humanitarian doctrine. That doctrine has been elaborately discussed and decisions of the Supreme Court (not yet officially reported), which were not known to court or counsel when the case was originally argued, have been laid before us. Moore v. Transit Co. (Mo. Sup.) 92 S. W. 390; Eppstein v. Railway Co., 94 S. W. 967, not yet officially reported; also, Rodgers v. Transit Co. (St. L.) 92 S. W. 1155. We understand it to be the view of the...