Bryant v. Kansas City Rys. Co., No. 13431.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtTrimble
Citation217 S.W. 632
Docket NumberNo. 13431.
Decision Date05 January 1920
PartiesBRYANT et ux. v. KANSAS CITY RYS. CO.
217 S.W. 632
BRYANT et ux.
v.
KANSAS CITY RYS. CO.
No. 13431.
Kansas City Court of Appeals. Missouri.
January 5, 1920.

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

"Not to be officially published.",

Suit by Homer F. Bryant and wife against the Kansas City Railways Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and Chas. N. Sadler and E. E. Ball, both of Kansas City, Mo., for appellant.

Harry G. Kyle, of Kansas City, Mo., for respondents.

TRIMBLE, J.


Plaintiffs' son, a child slightly over 3 years of age, was struck by a street car, whereby his left leg was mangled, so that it had to be amputated above the knee. They brought this suit to recover for loss of services, expenses of medical attention, and nursing made necessary by the maiming of the boy, and for the purchase of artificial limbs for him. The petition declares on the humanitarian rule. The answer was a general denial. The jury returned a verdict of $3,000. The defendant appealed.

The petition alleged that the boy was 3½ years old; that he was crossing West Thirty-Ninth street (which runs east and west), going in a northerly direction, and passed over defendant's north track at or near to a point about 50 feet east of the east curb line of Bell street at its intersection with West Thirty-Ninth street, and, when he had gotten over and beyond both of the rails of the north track on said West Thirty-Ninth street and about a foot north of the north rail of said track at said place, he was struck by the northwest corner of a west-bound street car, and his body was thrown to and was rolled upon the north rail of said track, and

217 S.W. 633

the front wheel on the north or right-hand side of the car passed over his left leg about half way between the knee and the hip joint, crushing it so that amputation had to be and was performed; that the car was going about 5 or 6 miles per hour; that defendant's servants—

"in charge of said car saw, or by the exercise of reasonable care and diligence could have seen, plaintiffs' son in the street, and upon the street, between the curb lines of said street, and approaching near the said north-bound track, and crossing said north-bound track, and in a position of peril, in time to have stopped said car, or to have slowed the speed of same and to have sounded an alarm, and thus have prevented said injuries to plaintiffs' son, but that defendant, its agents, servants, and employés, carelessly and negligently failed so to do."

As tried and submitted, the case did not rely upon any failure to warn, but only upon the motorman's failure to slow up or stop the car, if there was reasonable time in which to do this by the exercise of ordinary care.

It is urged that, since the petition does not allege the child was oblivious of his peril, no cause of action is stated. Obliviousness is necessary in a great many cases, but the distinction between them and this one is that here the tender age of the child, which is alleged, is at least as sufficient to give notice to the motorman that he must act as is obliviousness in an adult. Simon v. Metropolitan St. Ry., 231 Mo. 65, 132 S. W. 250, 140 Am. St. Rep. 498; Wagner v. Metropolitan St. Ry. Co., 160 Mo. App. 334, 338, 142 S. W. 463; Childress v. Southwest, etc., R. Co., 141 Mo. App. 667, 682, 685, 126 S. W. 169; Cornooski v. St. Louis Transit Co., 207 Mo. 263, 106 S. W. 51. "Both danger and duty began the instant the child left the sidewalk, bound headlong into peril." Cytron v. St. Louis Transit Co., 205 Mo. 692. 720, 104 S. W. 109, 117.

It is next urged that defendant's demurrer to the evidence should have been sustained. The little boy was crossing the street alone and unattended. The location of the accident, the direction the boy was going, the point at which he was struck, and the resulting injury to him, are as set forth in the petition above outlined. Thirty-Ninth street is 36 feet wide from curb to curb. The car tracks occupy a strip in the middle thereof about 15 feet wide, leaving 10½ feet on each side of the outer tracks. The west line of Genesee street is 270 feet east of the east line of Bell street. It was upgrade going west from Genesee street to Bell street.

A passenger on the west-bound car that struck the boy testified that he first saw the little fellow before the car crossed Genesee street. The boy was then going from the north to the south side of Thirty-Ninth; that he saw him all the way as he was crossing to the south, and then saw him start back across the street going north; that, when the boy left the south curb on his return to the north side...

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4 practice notes
  • Petty v. K.C. Pub. Serv. Co., No. 39834.
    • United States
    • United States State Supreme Court of Missouri
    • December 9, 1946
    ...was highly prejudicial to defendant and to all of which defendant, this appellant, objected and excepted. Bryant v. Kansas City Rys. Co., 217 S.W. 632; Meeker v. Union Electric L. & P. Co., 216 S.W. 933, 279 Mo. 574; Godfrey v. Kansas City P. & L. Co., 247 S.W. 451; Williams v. Fleming, 267......
  • Schee v. Schee, No. 26435.
    • United States
    • Missouri Supreme Court
    • March 24, 1928
    ...State ex rel. v. Thompson, 81 Mo. App. 549; Moran v. Davis Grain Co., 226 S.W. 84; Jackson v. Rys. Co., 232 S.W. 752; Bryant v. Rys. Co., 217 S.W. 632; Fogle v. Pindell, 248 Mo. 65; Cameron v. Protective Assn., 275 S.W. 988; Solomon v. Light & Power Co., 262 S.W. 367; State v. Tel. Co., 263......
  • Shields v. Kansas City Rys. Co., No. 24019.
    • United States
    • Missouri Supreme Court
    • July 31, 1924
    ...should stand for $13,500. In that case it was mentioned that the parents of the plaintiff in another suit (Bryant v. Ry. Co. [Mo. App.] 217 S. W. 632) had recovered the sum of $3,000, for medical and other attentions, and for the loss of In view of the holding in the Bryant Case, and of the......
  • Bryant v. Kansas City Rys. Co., No. 21468.
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1921
    ...of this child brought suit against the defendant for loss of service and medical attention. Bryant et ux. v. Kansas City Rys. Co. (App.) 217 S. W. 632. The same point was made there, and ruled against defendant. The rule of the Kansas City Court of Appeals in that case is sound, and we appr......
4 cases
  • Petty v. K.C. Pub. Serv. Co., No. 39834.
    • United States
    • United States State Supreme Court of Missouri
    • December 9, 1946
    ...was highly prejudicial to defendant and to all of which defendant, this appellant, objected and excepted. Bryant v. Kansas City Rys. Co., 217 S.W. 632; Meeker v. Union Electric L. & P. Co., 216 S.W. 933, 279 Mo. 574; Godfrey v. Kansas City P. & L. Co., 247 S.W. 451; Williams v. Fleming, 267......
  • Schee v. Schee, No. 26435.
    • United States
    • Missouri Supreme Court
    • March 24, 1928
    ...State ex rel. v. Thompson, 81 Mo. App. 549; Moran v. Davis Grain Co., 226 S.W. 84; Jackson v. Rys. Co., 232 S.W. 752; Bryant v. Rys. Co., 217 S.W. 632; Fogle v. Pindell, 248 Mo. 65; Cameron v. Protective Assn., 275 S.W. 988; Solomon v. Light & Power Co., 262 S.W. 367; State v. Tel. Co., 263......
  • Shields v. Kansas City Rys. Co., No. 24019.
    • United States
    • Missouri Supreme Court
    • July 31, 1924
    ...should stand for $13,500. In that case it was mentioned that the parents of the plaintiff in another suit (Bryant v. Ry. Co. [Mo. App.] 217 S. W. 632) had recovered the sum of $3,000, for medical and other attentions, and for the loss of In view of the holding in the Bryant Case, and of the......
  • Bryant v. Kansas City Rys. Co., No. 21468.
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1921
    ...of this child brought suit against the defendant for loss of service and medical attention. Bryant et ux. v. Kansas City Rys. Co. (App.) 217 S. W. 632. The same point was made there, and ruled against defendant. The rule of the Kansas City Court of Appeals in that case is sound, and we appr......

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