Bennett v. Metropolitan St. Ry. Co.

• Decision Date: 14 January 1907
• Citation: 99 S.W. 480,122 Mo. App. 703
• Parties: BENNETT v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

99 S.W. 480

122 Mo. App. 703

BENNETT v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals, Missouri.

January 14, 1907.

Rehearing Denied February 4, 1907.

1. STREET RAILROADS—INJURIES TO PEDESTRIANS —NEGLIGENCE—SPEED.

Where, in an action for injuries to a pedestrian in a collision with a street car, all the witnesses agreed that the car was moving at about half speed, owing to the presence of numerous workmen on or near the track, and plaintiff contended that the car could have been stopped within 10 or 12 feet, a charge of negligence with respect to the rate of speed at which the car was running was not sustained.

2. SAME—TRIAL—SIGNALS—ISSUE OF FACT.

Where, in an action for injuries to a pedestrian by being struck by a street car, all of the witnesses who were listening testified that

the bell was rung prior to the accident, the statement of plaintiff, who was partially deaf, and was not listening, that he did not hear the bell, was no evidence on which to raise an issue of fact as to whether the bell was rung.

3. SAME—CONTRIBUTORY NEGLIGENCE.

Plaintiff, a man 75 years old, and partially deaf, had knowledge that, owing to repairs on a street car track, cars going in both directions used the same track. Plaintiff approached the track several minutes before he was struck and stopped to watch the men at work. He stood on or near the track on which cars were being run, with his back to the south, until he was struck by a car approaching from that direction. Plaintiff neither looked nor listened for cars approaching from the south, and, if he had looked, he could have seen for a distance of five or six blocks. Held, that plaintiff was negligent as a matter of law.

4. SAME — LAST CLEAR CHANCE — BURDEN OF PROOF.

Where plaintiff was clearly negligent in failing to observe an approaching car by which he was struck, the burden was on him, in order to recover, to show that the motorman was negligently indifferent to plaintiff's safety and failed to exercise the care of an ordinarily careful person in his situation, mere proof that the motorman committed an error of judgment being insufficient.

5. SAME—EVIDENCE.

Where the motorman of a street car by which plaintiff was struck had no knowledge that plaintiff was deaf, and did not hear warning signals given, and would not step from the track, until the car was only six or eight feet away from him, when the motorman, being then unable to stop the car, redoubled his efforts to warn plaintiff by vigorously clanging the bell, the motorman was not negligent, either in failing sooner to discover plaintiff's peril, or in the effort made after he realized it to avoid injuring him.

Appeal from Circuit Court, Jackson County; E. E. Yates, Special Judge.

Action by John Bennett against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John H. Lucas, for appellant. Brown, Harding & Brown, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages resulting from personal injury alleged to have been caused by the negligence of defendant, and obtained a judgment in the sum of $3,500, from which defendant appealed.

At the conclusion of all the evidence, as well as at the close of that offered by plaintiff, defendant unsuccessfully requested the court to give a peremptory instruction to the jury in its favor, and now insists that error was committed in submitting any issues to the jury. The injury occurred near 8 o'clock in the morning of August 12, 1902, on Fifth street between Tenney and Northrup streets in Kansas City, Kan., and was caused by plaintiff being struck by a moving car on the "Fifth Street Line" of defendant's street railway system. The pertinent facts appearing from the evidence introduced by plaintiff are as follows: Fifth street runs north and south, and defendant's line consists of two parallel tracks, one of which (the east) is used for north-bound and the other (the west) for south-bound cars. At the time of injury cars going in both directions were run on the west track, owing to repairs that were being made at that place upon the east track. A number of laborers was employed in this work, and plaintiff had approached several minutes before he was struck and stopped to watch the men at work. He was standing, so he says, some six or eight inches east of the east rail of the west track, but one of his witnesses states that he was standing with the east rail of that track between his feet. He was facing east of north and therefore with his back towards the south. The car that struck him approached from the latter direction, and for some distance proceeded at slow speed, not exceeding five or six miles per hour. Plaintiff, who was about 75 years old and "pretty deaf," admits that he knew north-bound cars were using the west track, and that he neither looked nor listened for moving cars, though he knew they were passing that place frequently. Had he looked, he could have seen the car coming from the south for a distance of five or six blocks, and his position was open to the observation of the motorman. He did not hear any warning bell or signal until an instant before the collision —too late for him to step out of the way. Plaintiff introduced, as a witness, one of the laborers, named Martin, who testified that his attention was first attracted by the ringing of the bell. He looked up and saw plaintiff, who was some 25 feet north of him, standing over the east rail of the west track in the position described. The car was then 35 or 40 feet away from plaintiff. The bell was given two or three taps before the car reached a point opposite the place where witness stood, and was rung again when the car was about eight feet distant from plaintiff. The car moved by witness at the rate of five or six miles per hour, but began to reduce speed when about eight feet from plaintiff, and was moving at the rate of two or three miles per hour at the time of the collision. Witness, when pressed by defendant to give his reason for not attempting to warn plaintiff, finally replied, "I thought he might get away." No other eyewitness to the accident was introduced by plaintiff.

The defense upon the merits is very clearly outlined in the following extract from the statement of the motorman, which was received in evidence by agreement: "When I got within five feet of the point where they were working, an old man stepped from the side of the track, and before I could throw off my power and apply the brakes I struck him. At the time he stepped in front of my car, I was going at the rate of five or six miles an hour. Ordinarily, I travel at the rate of 10 or 12 miles an hour at this point, but, on account of the men working on the track, I had received slow orders, which was for the safety of the men who were working there. I saw the man just as he attempted to cross the track, and I was certainly ringing my bell as hard as I possibly could. He must have been deaf, as he paid no attention whatever. I asked him afterward why it was he started across in front of my car and he replied: `Well, I didn't see your car coming. I was going over to the hospital where I am stopping, and just cut across the track at this place.'" The conductor said: "As we were north bound on Fifth street and between Tenney and Northrup avenues, I was leaning out of the back of the car over the gate watching a crowd of men who were working on the tracks. At the same time, I noticed an old man who was standing watching them. As our car got within about five feet of him, he started across the track in front of it, and, before the motorman could stop the same, he was struck and knocked down. On approaching the workmen, the motorman was going slow. I should say at the rate of five or six miles an hour, and was ringing his bell to attract the attention of those who were working in the track. I did not see the old man look up as we approached him, and I don't think he paid any attention to the warning of the motorman's bell." Another witness for defendant, one of the workmen, stated that he was working about 150 feet south of where plaintiff was struck, and that the bell was being rung when the car passed him, and continued ringing until the accident occurred. Two other workmen, King and Carey, who were introduced as witnesses by defendant, testified as follows concerning the ringing of the bell: The former said his attention was first attracted by it immediately before the collision; the latter said he did not remember whether the bell was ringing or not. When asked if he heard it, he replied, "I cannot say that I did. It usually made plenty of noise coming along there. We were working along there, and they were particular. I do not know whether the bell was ringing or not." Both of these men were at work and neither had his attention called to what was occurring until just before plaintiff was struck. Mr. Carey testified that plaintiff stepped from a position of safety in front of the moving car when it was not more than five or six feet away. The car was running up grade and plaintiff produced expert evidence tending to show it could have been stopped in a distance of 10 or 12 feet. The negligence averred in the petition is "that defendant's agents, servants, and employés so in charge of said car * * * saw the perilous position of plaintiff...