Bergfeld v. Dunham

• Decision Date: 28 January 1918
• Docket Number: No. 12702.,12702.
• Citation: 201 S.W. 640
• Parties: BERGFELD v. DUNHAM et al.
• Court: Missouri Court of Appeals

201 S.W. 640

BERGFELD v. DUNHAM et al.

No. 12702.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Joseph Bergfeld against Robert J. Dunham and others, receivers of a street railway, and another. From judgment for plaintiff against them, the receivers appeal. Reversed, and cause remanded.

Clyde Taylor and Charles A. Stratton, both of Kansas City, for appellants. Hadley, Cooper, Neel & Wright and J. Stanley Bassett, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is founded upon a claim for personal injuries which he charges were inflicted upon him through the negligence of the defendants. There was a judgment in the trial court for plaintiff against the defendant receivers of the street railway, and for the other defendant, the Chicago, Rock Island & Pacific Railway. The street railway appealed.

The place where the injury occurred was at the crossing of the tracks of the street railway over the tracks of the other defendant, a steam railway. Plaintiff was a passenger on the street railway car, after 12 o'clock at night, and the charge against that company is general negligence; there being no specification in that respect. But the evidence relied upon at the trial against that company and upon which instructions were submitted tended to show that it was the duty of the street car motorman to stop the car before crossing over the steam railway tracks, and the duty of the conductor of the car to then go forward to a position where he could see whether there was any train approaching on the last-named tracks, and, if none, was to signal the motorman to cross over; and that these agents failed in that duty, and the motorman was in the act of running the car over the crossing without observing these precautions when a freight train on the steam railway track, backing towards the crossing, could have been seen if these agents had performed their duty aforesaid.

The car in controversy was "an owl" car, which made the trip from Kansas City, Kan., eastward to Kansas City, Mo., and thence returning westward to Kansas City, Kan., and the trial court admitted evidence (over the objection of the street car company) that on the inward and eastward trip of this same car and crew, the car was delayed 10 or 12 minutes on account of the "controller" at the rear of the car dropping off. Considering this as matter of negligence, it was far too remote to have any bearing or connection with the failure of the conductor, long afterwards, on the return of the car, to go ahead at a crossing at a different place, to look out for an approaching train. The two matters are as foreign to each other as could well be. When one act of negligence is sought to be connected with another, the second, or last, act must have been such a one as the perpetrator of the first would reasonably have supposed, in the natural order, would follow as a sequence of the first. We recently discussed and applied this rule in Daneschocky v. Sieble, 195 Mo. App. 470, 193 S. W. 966, following recent announcements of the Supreme Court in Harrison v. Light Co., 195 Mo. 606, 623-629, 93 S. W. 951, 7 L. R. A. (N. S.) 293; Buckner v. Horse & Mule Co., 221 Mo. 700, 709-711, 120 S. W. 766; Obermeyer v. Logeman Chair Co., 229 Mo. 97, 111, 129 S. W. 209. The same rule is stated in Brubaker v. Light Co., 130 Mo. App. 439, 110 S. W. 12, and Cole v. Loan Society, 124 Fed. 116, 59 C. C. A. 593, 63 L. R. A. 416. But, if we may judge from plaintiff's brief, the object of this testimony was to show that this prior delay on the eastern trip had thrown the car behind time, and in consequence the motorman and conductor were in too much of a hurry to stop at the crossing. Even if we should allow that, for this reason, evidence could be properly admitted showing the car was behind time, it certainly was not proper to show that being behind was the consequence of some remote and disconnected negligence, thus showing and prejudicing the jury with other and foreign acts of negligence.

There was some evidence in the case tending to show that plaintiff's principal suffering and...