Barnard v. Metropolitan St. Ry. Co.

• Decision Date: 17 May 1909
• Parties: BARNARD v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

119 S.W. 458

137 Mo. App. 684

BARNARD v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 17, 1909.

Rehearing Denied May 31, 1909.

1. STREET RAILROADS (§ 114)—INJURIES TO TRAVELERS—COLLISION—NEGLIGENCE.

In an action for injuries by collision with a street car, evidence held to show that the motorman was not negligent in failing to use every effort to stop the car after discovering plaintiff's peril.

2. STREET RAILROADS (§ 114)—INJURIES TO TRAVELERS—NEGLIGENCE.

Evidence in action for injuries in collision with street car, held to show that plaintiff failed to use proper care in getting off the track.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Ira Barnard against the Metropolitan Street Railway Company. Judgment for plaintiff and defendant appeals. Motion to dismiss appeal denied, and judgment reversed.

John H. Lucas and F. G. Johnson, for appellant. Martin J. O'Donnell, for respondent.

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 1,500 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 onto 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 150 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 600 feet or more, and that under all the circumstances the car, running at 12 miles per hour, could have been stopped in 170 feet. The front end of the car struck the front end of the wagon tongue, the point of contact being about 18 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 12 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 125 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 employés 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,...