Bruening v. Metropolitan Street Railway. Co.
| Decision Date | 01 June 1914 |
| Citation | 168 S.W. 248,180 Mo.App. 434 |
| Parties | HENRY BRUENING, JR., Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Bruce Barnett for appellant.
(1) The case does not come within the last chance or humanitarian doctrine. Kinlen v. Railroad, 216 Mo. 145; Flynn v. Railroad, 166 Mo.App. 182; Koons v Railroad, 178 Mo. 591; Prewitt v. Eddy, 115 Mo 283. (2) The demurrer to the evidence should have been sustained. Stokes v. Railroad, 173 Mo.App. 676; Waggoner v. Railroad, 152 Mo.App. 173; Payne v. Railroad, 136 Mo. 562.
Hadley, Cooper & Neel for respondent.
(1) The court did not err in overruling the defendant's demurrer to the evidence at the close of plaintiff's evidence nor at the close of all of the evidence. Schafstette v. Railroad, 175 Mo. 142; Flynn v. Railroad, 166 Mo.App. 182; Latson v. St. L. T. Co., 192 Mo. 459; Stokes v. Railroad, 173 Mo.App. 678. (2) The court did not err in giving plaintiff's instruction No. 3 and even if it did err it was harmless. Kinlen v. Railroad, 216 Mo. 156; Oates v. Railroad, 168 Mo. 544; Nephler v. Woodward, 200 Mo. 190; Wellman v. Railroad, 219 Mo. 126. (3) The court did not err in giving plaintiff's instruction No. 1. Latson v. St. L. T. Co., 192 Mo. 449; Wyman v. Railroad, 121 Mo.App. 629; Farrar v. Railroad, 249 Mo. 210; Stranchion v. Railroad, 232 Mo. 587; Linder v. St. L. T. Co., 103 Mo.App. 579. (4) Contributory negligence was not pleaded. Benjamine v. Railroad, 245 Mo. 614; Ramp v. Railroad, 133 Mo.App. 704; Williams v. Lamp Co., 173 Mo.App. 97.
An automobile of plaintiff was wrecked in a collision with an electric street car operated by defendant and this suit is for the recovery of the damages sustained by plaintiff. The collision occurred at six o'clock p. m. January 11, 1911, in Kansas City, on Main street near Twenty-eighth street. Plaintiff accompanied by his brother and a Mr. Kiger, drove the automobile north on Main street to a point near Twenty-eighth street and across the street from Saint Mary's Hospital, where he stopped to allow Kiger to alight. The automobile was stopped on the east side of the street near the curb and after Kiger alighted and closed the door it continued north on Main street, swerving to the left on to the east street car track in order to pass around some coal wagons which were being driven north in the same direction and on the same side of the street. Main street is paved with asphalt, has two street car tracks in the middle and going north from Thirtieth street to Twenty-seventh street, a distance of more than one-third of a mile, runs down hill. The automobile, a new five-passenger touring car, carried head and tail lights and as it was turned on to the car track, plaintiff and his brother who were riding in the front seat looked back, so they state, and observed a street car coming on that track but so far back that their contemplated movement appeared perfectly safe. Their statement of the injury which ensued describes the street car as coming over the brow of the hill at Thirtieth street when they looked back, but as we shall show, it could not have been so far away and was not more than 400 or 500 feet south of them. The automobile ran north on the east track at a speed of about fifteen miles per hour and had traveled 250 or 300 feet when it was overtaken by the street car and wrecked in the collision which followed.
The street car approached at thirty to thirty-five miles per hour, did not slacken speed before the collision and the motorman did not sound the gong nor give other warning. The rules of the road prevailing in Kansas City required plaintiff to turn to the left in passing the coal wagons. Owing to the darkness and the peculiarities of their position, plaintiff and his brother, when they looked back, could not tell how fast the car was approaching. They did not look again but assumed that it was too far away to menace their safety, would not overtake them if run at reasonable speed and that the motorman, in any event, would not run into them without warning.
A city ordinance introduced in evidence limited the speed of street cars to twelve miles per hour. The evidence of plaintiff puts the speed of the car at thirty to thirty-five miles per hour or about double that of the automobile.
The facts stated are from the evidence of plaintiff and are contradicted in all important respects by witnesses for defendant whose testimony describes the collision as having been caused by the automobile overtaking the street car and turning on to the track immediately in front of it and too close to avoid a collision. The most accurate and consistent account of the collision from the point of view of plaintiff appears in the testimony of Mr. Kiger who states that he alighted from the automobile on the east side, intending to cross over to the hospital. As the automobile started and turned to the left on to the track to go around the coal wagons, he looked to the south and observing that a street car was about 400 feet away and was approaching rapidly, waited for it to pass before he started to cross the street. It passed him, going at thirty miles per hour and without checking speed or giving any warning overtook the automobile which was running at half that speed and had gone down the track, perhaps 300 feet.
The petition alleges negligence in running the car at excessive speed and failing to give warning and also in not stopping, checking speed or giving warning "When defendant saw, or by the exercise of ordinary care and diligence, could have seen plaintiff and the automobile in which he was riding in a position of imminent peril." The court overruled the demurrer to the evidence offered by defendant and submitted to the jury all the pleaded issues of negligence. The verdict was for plaintiff and after its motions for a new trial and in arrest were overruled, defendant appealed.
In the discussion of the demurrer to the evidence counsel for defendant ask us to reject as wholly unworthy of belief the evidence of plaintiff for the reason that in placing the street car on the crest of the hill when they looked back, plaintiff and his brother assert a thing that could not have been true in view of the conceded fact that the automobile from that moment until the moment of the collision did not travel more than 300 feet. If the car were at the top of the hill, as stated by these witnesses, it traveled 1500 feet while the automobile ran 300 feet, at fifteen miles per hour--a physical impossibility. None of the witnesses for plaintiff estimate the speed of the street car at more than thirty-five miles per hour and obviously the car could not have been more than 400 or 500 feet south of the automobile when it turned on to the car track and proceeded down hill.
Plaintiff and his brother were mistaken in their estimate of the distance of the car from them but it does not follow that their testimony must be rejected in law because of that mistake which, under the circumstances of their situation might have been innocently made and certainly it does not follow that the testimony of the witness...
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