Bruening v. Metropolitan St. Ry. Co.

• Decision Date: 13 June 1914
• Docket Number: No. 11187.,11187.
• Citation: 181 Mo. App. 264,168 S.W. 247
• Parties: BRUENING v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

168 S.W. 247

181 Mo. A. 264

BRUENING v. METROPOLITAN ST. RY. CO.

No. 11187.

Kansas City Court of Appeals. Missouri.

June 13, 1914.

1. STREET RAILROADS (§ 117)—PERSONAL INJURY —QUESTION FOR JURY—CONTRIBUTORY NEGLIGENCE.

On evidence in an action for damages to plaintiff's automobile which had turned on defendant's track to go around some coal wagons on the side of the street, held, that the question of plaintiff's contributory negligence was for the jury.

2. STREET RAILROADS (§ 103)—CONTRIBUTORY NEGLIGENCE—DISCOVERED PERIL.

Though plaintiff, driving his automobile along defendant's street car track, was guilty of contributory negligence, yet, if defendant's motorman saw him or might have seen him in time to avoid the collision, it was his duty to do so.

3. STREET RAILROADS (§ 90)—PERSONAL INJURY —NEGLIGENCE.

The act of defendant's motorman, who saw plaintiff's lighted automobile running on the track about 500 feet ahead, in running his car at a speed of over 30 miles an hour without warning of any kind before collision with the rear of the automobile was negligence.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Leo T. Bruening against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas, of Kansas City, for appellant. Ellison A. Neel, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages resulting to him by reason of personal injuries received in a collision with one of defendant's street cars. He recovered judgment in the trial court. This is a companion case to one in favor of plaintiff's brother, who was injured in the same collision, the judgment in which we recently affirmed, and to which we refer for a detailed statement.

One of defendant's cars was going north between Thirtieth and Twenty-Seventh street on Main street in Kansas City, and plaintiff was riding with his brother in an automobile between the same points. It was after dark in the month of January. A Mr. Kiger was in the automobile with them, and they let him out at the curb, and then in starting up plaintiff's brother, who was driving the machine, discovered that coal wagons were in front of him. To pass them it became necessary to run in a somewhat diagonal course onto the east car track. The brother looked back to see if a car was coming, and saw one back as much as 500 feet. He could not tell the speed it was coming. His machine had acquired the speed of 15 or 20 miles an hour. Presently the street car, estimated to be running 30 or 40 miles an hour, crashed into the rear of the machine, without...