Borders v. Metropolitan St. Ry. Co.

• Decision Date: 31 December 1912
• Citation: 153 S.W. 72
• Parties: BORDERS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

153 S.W. 72

BORDERS v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

December 31, 1912.

Rehearing Denied February 3, 1913.

1. STREET RAILROADS (§ 117) — OPERATION — ACTIONS FOR INJURIES — QUESTION FOR JURY.

Where defendant's street car was more than 170 feet away, and was approaching at a speed of 16 to 20 miles per hour, when the driver of an electric coupé started to cross the track, and the intention of the driver to cross ahead of the car must have been apparent to the motorman, and he could have avoided the collision by reducing the speed or giving warning signals, it was for the jury to say whether the motorman acted with due care, even if it be conceded that the driver of the coupé was negligent.

2. NEGLIGENCE (§ 83) — CONTRIBUTORY NEGLIGENCE — INJURIES AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

Contributory negligence is not a defense to a cause founded on the last chance rule.

3. NEGLIGENCE (§ 117) — PLEADING — CONTRIBUTORY NEGLIGENCE.

Contributory negligence, being an affirmative defense, must be pleaded in the answer to raise an issue for the jury.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Joseph H. Borders against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas, of Kansas City, for appellant. Leslie J. Lyons, of Kansas City, for respondent.

JOHNSON, J.

An electric coupé owned by plaintiff and driven by his daughter was wrecked in a collision with an electric street car operated by defendant, and plaintiff sued to recover his damages, on the ground that they were caused by negligence of defendant in the operation of the street car. The petition pleads that the driver of the coupé, its only occupant, while in the exercise of reasonable care, was induced to enter the sphere of danger by the negligence of the motorman in running the car at high and dangerous speed and in failing to give warning of its approach, and also pleads negligence under what is known as the humanitarian or "last chance" rule. The answer, under our ruling in Ramp v. Railroad, 133 Mo. App. 700, 114 S. W. 59, must be treated as presenting no other defense than a general denial. Verdict and judgment were for plaintiff in the sum of $667.50, and defendant appealed.

Plaintiff bought the coupé two or three months before the injury, and paid $2,500 for it. His daughter, a young woman, had become proficient in running it, and was returning home from taking her father to his office. She traveled south on Grand avenue, a wide and much-traveled thoroughfare, and her course was along the west side of the street until she came to the junction with Gillham road, when she turned to a southeasterly course, for the purpose of going on that road, which is a boulevard and more desirable for motor cars than Grand avenue, a street used for all kinds of travel. There are two street car tracks on Grand avenue; the west track being used for south-bound cars. The young woman took a diagonal course to cross the tracks, and had almost cleared the first one when a south-bound street car collided with the rear end of the coupé and wrecked it. Fortunately she escaped injury, but plain...