Boring v. Metropolitan St. Ry. Co.

• Decision Date: 06 March 1906
• Parties: BORING v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

92 S.W. 655

194 Mo. 541

BORING v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. STREET RAILROADS—INJURY TO PEDESTRIAN —CONTRIBUTORY NEGLIGENCE—CONCURRING NEGLIGENCE.

In an action for injuries to plaintiff while attempting to walk across a street railway track, it was not contended that plaintiff was not guilty of negligence in attempting to cross the track without looking to see if a car was approaching, but that defendant was guilty of negligence concurrently with plaintiff, and that the gripman of the car knew, or by the exercise of diligence might have known or observed that it was plaintiff's purpose to cross the track in front of the car, and could have stopped the car in time to have avoided the injury. Plaintiff testified that he did not slacken his pace or look to see if a car was approaching from the time he left the sidewalk until the moment the car struck him. The distance between the point where he turned to cross the street and the point where he attempted to cross the track was but a few feet, and there was no evidence that the gripman could by the exercise of due care and diligence have stopped the car in time to prevent the accident. Held, that plaintiff's contributory negligence defeated his right to recover.

2. EVIDENCE — OPINIONS — QUALIFICATION OF WITNESS.

It was proper to exclude testimony of a witness as to whether he knew within what distance one of defendant's cable cars when running at its usual rate of speed could be stopped, and, if so, to state within what distance it could be stopped without injury to the passengers, no showing having been made that witness was qualified to express an opinion thereon.

Appeal from Circuit Court, Jackson County; Shannon C. Douglass, Judge.

Action by G. W. Boring against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

McCluer & Bowling, for appellant. John H. Lucas and Chas. A. Loomis, for respondent.

BURGESS, P. J.

This is an action for damages alleged to have been sustained by plaintiff by being run against by one of defendant's cars on or about the 12th day of November, 1900, in Kansas City, Mo.

The petition alleges the incorporation of defendant, and that it was operating a cable street railway on East Fifteenth street, in said city, and that plaintiff, while attempting to walk across said Fifteenth street, at the junction of Fifteenth and Cherry streets, was run against by one of the street cars operated by the defendant on its Fifteenth street line, and was knocked down, bruised, injured, and damaged to the extent of $10,000; the precise injuries to plaintiff being set forth. The petition further sets forth that when the plaintiff started to cross the said street, he looked for cars on said railway, and saw one going east, nearly opposite to where he was attempting to cross, but did not see a car coming from the east, and that believing he could cross the said railway in safety, in front of the east-bound car, with his face to the west watching the east-bound car, proceeded to walk across said Fifteenth street from a northwest to a southeast direction, and while so walking across said Fifteenth street with his head so turned to the west, a train from the east on the defendant's railway came along said Fifteenth street, a short distance to the east of where this plaintiff was so crossing said street, without ringing the bell, or making any effort to notify this plaintiff of the approach of said train, and while this plaintiff was so walking across said street, in full view of the gripman operating the car coming from the east, and while the gripman on the said train could plainly see and did see, or by the exercise of ordinary care should have seen, in time to have sounded an alarm and notified this plaintiff, and in time to have avoided accident by stopping his car; that while the plaintiff had his head turned away from said west-bound car, and was unmindful of the same or of its approach, said gripman drove said car along said track at full speed and into and against plaintiff, when said gripman well knew that plaintiff was looking at and watching the east-bound car and was unaware of the approach of said west-bound car; that, by the exercise of ordinary care, said gripman could have stopped said west-bound car and avoided the injury to plaintiff. That plaintiff had no knowledge of the approach of said west-bound train until so short a time before it struck him that it was impossible for him to get out of the way of same, and that the collision occurred at or near the center of the crossing of said Fifteenth street at Cherry street, and that if the defendant had rung the bell or sounded the alarm as said train approached said crossing at Cherry street, the plaintiff's attention would have been attracted to the approaching of said train in time for him to have gotten off said track before he was struck; that said accident was caused by the carelessness and negligence of defendant's servants and employés in failing and neglecting to ring the bell or sound an alarm as they approached said crossing, and carelessly and negligently failing to ring a bell or sound an alarm after said servants and employés saw, or by the exercise of ordinary care should have seen, the plaintiff was going onto said track ahead of said train unaware of its approach, and was, without knowing it, placing himself in a dangerous position, and carelessly and negligently failing and refusing to stop or slow up said car after the said servants saw or by the exercise of ordinary care should have seen that plaintiff, unaware of the approach of said train, was approaching the track, and placing himself in a dangerous position, and in carelessly and negligently failing and refusing to stop or slow up said car in time to prevent injuring plaintiff. The defenses were a general denial and a plea of contributory negligence.

The salient facts are about as follows: The defendant was operating a double-track street railway on East Fifteenth street in Kansas City. The cars going east used the south track, and those going west, the north track. The different lines were operated over this street by defendant—one known as the "Fifteenth Street Line," using yellow cars, and running east and west on said street; the other, known as the "Holmes Street Line," using red cars, and running east on said street to Holmes street, and then turning south on Holmes—both lines using the same tracks as far east as Holmes street. The evidence tends to show that the injury of which plaintiff complains took place on November 24, 1900, where Cherry street, the first street west of Holmes, crossed Fifteenth; that Fifteenth street, from Holmes west to Cherry, is almost level, but at Cherry it ascends quite a little to the next street, Locust; that at a point about half way between Cherry and Locust, and about 150 feet west of Cherry, the east-bound cars would stop to drop the rope, and would then, before starting, ring a bell to attract the attention of a flagman stationed at Holmes street, who would signal when to start; that Cherry street was about 30 or 35 feet wide between the curbing; that Fifteenth street, at that place, was about 50 feet wide from the curbing, and about 10 feet from the curbing on either side to the building line; that the tracks of the railway were in the center of the street, the outside rails on each side of each track being about 15 to 18 feet from the curbing; that there were two gas street lights at this crossing at Cherry street, one at the southeast and the other at the southwest corner, making the light such that a man could be seen for a block or more. The above, in relation to the place where the injury happened, is shown by the evidence of Andrew Stone. This...