Bergfeld v. Dunham

• Decision Date: 18 February 1918
• Docket Number: No. 12703.,12703.
• Citation: 202 S.W. 253
• Parties: BERGFELD v. DUNHAM et al.
• Court: Missouri Court of Appeals

202 S.W. 253

BERGFELD v. DUNHAM et al.

No. 12703.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

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

"Not to be officially published."

Action by Nora Bergfeld against the Chicago, Rock Island & Pacific Railway Company, and Robt. J. Dunham and Ford F. Harvey, receivers of the Metropolitan Street Railway Company. From a judgment for plaintiff against the street railway, its receivers appeal. Reversed, and cause remanded.

See, also, 201 S. W. 640.

Clyde Taylor, of Kansas City, Mo., R. J. Higgins, of Kansas City, Kan., and Ben T. Hardin and Charles A. Stratton, both of Kansas City, Mo., for appellants. Hadley, Cooper, Neel & Wright, of Kansas City, Mo., for respondent.

TRIMBLE, J.

Plaintiff and her husband were returning after midnight on defendant's street car. At the point where defendant's tracks crossed the line of the Chicago, Rock Island & Pacific Railway, a freight train backing toward and over the crossing struck the street car and injured both of said passengers. This action is by the wife for her personal injuries, and the suit was brought against both railways charging general negligence against the street railway and specific negligence against the other. The jury returned a verdict of $250 for plaintiff against the street railway, but found in favor of the steam railroad. The losing defendant has appealed.

A similar suit by plaintiff's husband to recover damages for his personal injuries was passed on by this court January 28, 1918, No. 12702, Joseph Bergfeld v. Dunham et al., 201 S. W. 640. As in that, so in this, the case against the street railway was submitted upon the issue of its negligence in failing to ascertain if there was a railroad train approaching the crossing before attempting to pass over it with the street car. Plaintiff's evidence tended to show that before said street car should attempt to go over said crossing it should stop, and it was the duty of the conductor thereof to go forward and see whether a train was coming, and, in the event there was none, to signal the car to come on. The evidence further tended to show that this duty was not performed, or, if the form thereof was gone through with, it was negligently done, so that, as the street car was going over the crossing, a freight train backed into it and caused the injury.

Over the objections and exceptions of the appealing defendant, plaintiff introduced evidence that on a former occasion that night a negligent accident occurred to this...