Bybee v. Dunham

• Decision Date: 02 July 1917
• Docket Number: No. 12464.,12464.
• Parties: BYBEE v. DUNHAM et al.
• Court: Missouri Court of Appeals

198 S.W. 190

BYBEE v. DUNHAM et al.

No. 12464.

Kansas City Court of Appeals. Missouri.

July 2, 1917.

Rehearing Denied November 5, 1917.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

"Not to be officially published."

Action by Harriet Bybee against Robert J. Dunham and Ford F. Harvey, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Clyde Taylor, Mont T. Prewitt, and Charles A. Stratton, all of Kansas City, for appellants. Edward A. Setzler, of Columbia, and Scarritt, Scarritt, Jones & Miller, of Kansas City, for respondent.

TRIMBLE, J.

This is an action under section 5425, R. S. Mo. 1909, to recover damages for the death of plaintiff's husband alleged to have been caused by the negligent operation of a car upon the street railway then in the hands of the defendant receivers. A verdict and judgment for $4,000 was obtained, and defendants appealed.

The tragedy occurred on Troost avenue, between Forty-Fifth and Forty-Sixth streets. On the west side of the avenue, opposite No. 4531, a basement had been excavated and a foundation put in for a substation post office. Plaintiff's husband, a young man 25 years of age, was engaged in hauling a load of steel rods, used in reinforcing concrete, away from and out of said basement. He was driving a team of two large horses hitched to a huge moving van having a canvas top. The load weighed a ton and a half or two tons, and the rods extended from the rear of the wagon, so that the character of the load and the fact that it was very heavy were easily observable. In going out of the basement the wagon was driven east up an inclined plane to the sidewalk on the west side of the avenue, then over the sidewalk into the street, and across the street car tracks. At the summit of the inclined plane, and on the surface of the ground, was a slight elevation just west of the sidewalk, and, when the wagon reached this, it stuck. At this moment the horses were on the granitoid sidewalk, their heads being a few feet west of the west curb on said avenue. Some of the workmen caught hold of the rear wheels, and with their help the wagon was pulled up entirely out of the basement, and then the team pulled the wagon across the sidewalk and down from the curb into the street to and upon the street car tracks, moving, according to plaintiff's testimony, very slowly, as a "lazy team" would go in hauling such a heavy load. About the time the horses heads got to the west or south-bound car track, the defendants' car, about 340 feet away to the north, and coming south on that track, began ringing its gong. According to plaintiff's evidence it was then going 25 miles per hour, and continued, without slackening speed, on its way down a more than 2 per cent. grade until it struck the wagon. At the moment of the collision the horses had gotten over the track, and the car struck the wagon a little behind the front wheels. Plaintiff's husband was driving the team and walking along on the south side of the wagon, about opposite its right front wheel. He was, therefore, on the opposite side of the wagon from the car, which, as stated, approached from the north; and when the car struck the wagon it threw the same over upon plaintiff's husband and killed him.

The petition alleged that deceased was moving said material in a heavily loaded wagon drawn by a team of two horses, and, in so doing, said wagon and team approached the track, and were upon or near the same, and in a place of danger from cars operated from the north, for several minutes before the collision, and for a sufficient length of time for the person managing the car which caused the collision to see the same in said danger, and to slow down or stop in time to avoid a collision and any injury to plaintiff's husband; that while said wagon and team, with which plaintiff's husband was employed, were lawfully upon or near the west track and in a place of danger from cars from the north, and while plaintiff's husband was on the south side of said wagon and team, and in the exercise of ordinary care, the operatives of the car on the west track carelessly ran the same against the wagon and team then being conducted by the plaintiff's husband as aforesaid, and caused the car to collide with and hurl the wagon and team over upon him, knocking him down and injuring him, so that he died in about two hours thereafter. The petition further alleged that the operatives of the car, the agents and servants of defendants, negligently caused the death of plaintiff's husband, and that their negligence consisted in this:

"That they ran the said car and caused the collision and injuries aforesaid, without stopping or slowing down the motion of the said car, so as to avoid the collision and injuries aforesaid, after they saw, or by the exercise of reasonable care might have seen, the said wagon and team with which the plaintiff's said husband was employed as aforesaid upon or near the said street railroad track at the time and place aforesaid and in a position of danger from said moving car, and when by the exercise of ordinary care they might have done so and have avoided said collision and said injuries to the plaintiff's said husband."

The answer, aside from an admission that the receivers were in charge of the railway, was a general denial, coupled with a plea of contributory negligence. No attack was made upon the petition, prior to the verdict, either by demurrer, objection to the introduction of evidence, or otherwise.

Appellants, in urging that their demurrer to the evidence should have been sustained, contend that the petition stated no cause of action. Since the objection to the petition comes after verdict, it cannot be successfully maintained, unless the petition is so defective as to wholly fail to state any cause of action at all. If appellants mean to say that the petition states no cause of action in plaintiff, because it does not sufficiently identify the deceased with the wagon and team, and does not say that he was in danger, we do not think it is open to that charge. The petition says that Bybee was moving the materials in a heavily loaded wagon, and that while the wagon and team, with which he was employed, was in danger, etc., and while he was on the south side of the wagon, the car was negligently run against the wagon and team, then being conducted by the plaintiff's husband, etc. This sufficiently identifies deceased with the wagon and team, so as to show that, whenever it was in danger, he was, too. And while it does not expressly say that deceased was himself in danger, that is necessarily implied from what is said as to his connection with, and relative location to, the wagon and team, which is expressly stated to have been in danger. However, if the petition should have gone further, and affirmatively stated that deceased, as well as the wagon and team, was in danger, then this was one of those omissions that are immune to attack by an objection coming after verdict.

Nor do we think the clause in the petition which says that deceased was "in the exercise of ordinary care" makes a felo de se of the petition, or destroys every cause of action therein alleged. The use of such a phrase in the pleading does not preclude plaintiff from invoking the benefit of the humanitarian or last chance rule. Clark v. St. Joseph Terminal Ry. Co., 242 Mo. 570, 595, 596, 148 S. W. 472; Taylor v. Metropolitan St. Ry. Co., 256 Mo. 191, 210, 165 S. W. 327; Bay v. Missouri Southern Ry., 183 S. W. 343, 345. Appellants are, therefore, not entitled to now urge that the petition fails to state a cause of action.

But appellants say that plaintiff is not entitled to recover, because the evidence wholly fails to show that the motorman saw, or should have seen, deceased in a perilous situation. Though there was nothing to prevent the motorman from seeing that the team and wagon were in danger and were not going to get out, and though the motorman saw or should have seen this long enough before the collision for the car to have been stopped in ample time to have prevented the collision, yet, as the driver of the wagon, Mr. Bybee, was on the opposite side of the wagon from the car, the motorman did not see him and could not see him. For this reason, appellants say, their demurrer to the evidence should have been sustained. In other words,...