Bryant v. Kansas City Rys. Co.
Decision Date | 05 January 1920 |
Docket Number | No. 13431.,13431. |
Citation | 217 S.W. 632 |
Parties | BRYANT et ux. v. KANSAS CITY RYS. CO. |
Court | Missouri Court of Appeals |
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.
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.
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 of the street, the car which did the injury was 100 feet from the point where the boy was struck; that the passenger saw the boy from the time he left the curb until he passed onto the track in front of the car, there being nothing to obstruct the view, the east-bound car on the south track having been passed further down the street and out of the passenger's sight when the boy left the curb; that the car was going very slow, about 4 or 5 miles per hour; that after the boy passed onto the track out of his sight he heard the child scream, the car stopped, and he got off, and found the child lying close to the north rail, his head and chest outside thereof, and his left leg about 4 inches in front of the second wheel of the front truck and practically severed from the body, except for a small strip of flesh. It was a clear sunshiny day, about 3 in the afternoon, and the rails were dry. The boy was lying about 50 or 60 feet east of the east curb line of Bell street at its intersection with Thirty-Ninth. This passenger also testified on cross-examination that he had known or seen the motorman on this car for 10 years, and he always wore glasses, but wore none on this occasion; that the child was a "very small fellow," and went in a slow trot,...
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Bryant v. Kansas City Railways Co.
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