Byerley v. Metropolitan St. Ry. Co.

• Decision Date: 16 June 1913
• Citation: 158 S.W. 413
• Parties: BYERLEY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

158 S.W. 413

BYERLEY v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 16, 1913.

Rehearing Denied June 30, 1913.

1. STREET RAILROADS (§ 117) — INJURIES TO PERSON ON TRACKS — CONTRIBUTORY NEGLIGENCE.

In an action for injuries sustained in a collision about 9 or 9:30 in the evening between a street car and an automobile in which plaintiff was riding, where there was evidence that before the automobile turned to cross the car tracks plaintiff looked to the south for a car, but saw none, and then to the north, and that when almost on the track she saw a car approaching from the south at 30 or 35 miles an hour, which was then 220 feet away, and by which the automobile was struck before it could be gotten out of danger, and there was no evidence as to how far a car could be seen approaching under the conditions existing at the time, it could not be said as a matter of law that she was guilty of contributory negligence, since, even though she had seen the car when she first looked south, she could not be held guilty of contributory negligence in assuming that it would travel at a reasonable or not unlawful rate of speed.

2. STREET RAILROADS (§ 117) — ACTION FOR INJURIES — QUESTIONS FOR JURY.

Where, in an action for injuries sustained in a collision between a street car and an automobile, there was evidence that the car was first seen 220 feet away when the automobile was almost on the track, that the car was running 50 feet a second, and the automobile less than one-twelfth that rate of speed, that to reverse the automobile it must come to a stop and then receive the power in reverse, and that it was stopped within its own length, but was carrier by the forward motion onto the track, that to instantly supply enough gasoline to so increase its speed as to cross the track would have resulted in killing the engine and stopping the machine, it was a question for the jury whether, in such sudden peril, it was negligence to attempt to reverse the engine instead of attempting to cross ahead of the car.

3. STREET RAILROADS (§ 99) — INJURIES TO PERSON ON TRACKS — CONTRIBUTORY NEGLIGENCE.

Where a person riding in an automobile sees or should see an approaching street car, and undertakes to cross in front of it, miscalculating its distance and speed and the time required to cross, she cannot recover for damages sustained in a collision.

4. NEGLIGENCE (§ 65) — CONTRIBUTORY NEGLIGENCE.

Whether a person is guilty of contributory negligence depends upon the circumstances in each case.

5. STREET RAILROADS (§ 112) — ACTION FOR INJURIES TO PERSONS ON TRACK — PRESUMPTIONS AND BURDEN OF PROOF.

In an action for injuries sustained in a collision between a street car and an automobile, the contributory negligence of the automobile driver was an affirmative defense, the burden of showing which was on defendant, and in the absence of evidence to the contrary the presumption was that he looked for cars before starting to cross the tracks.

6. STREET RAILROADS (§ 117) — ACTION FOR INJURIES — QUESTIONS FOR JURY.

In an action for injuries sustained in a collision between a street car and an automobile, where there was evidence that plaintiff and the driver of the automobile looked for cars before turning to cross the track, but saw no car, that when almost on the track a car 220 feet away was seen approaching at 30 or 35 miles an hour, which struck the automobile before it could cross or back out of danger, it was a question for the jury whether the excessive speed of the car was the proximate cause of the injury.

7. STREET RAILROADS (§ 118) — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE.

In an action for injuries sustained in a collision with a street car while riding in an automobile driven by plaintiff's husband, where defendant pleaded plaintiff's contributory negligence, but not the negligence of the husband, an instruction covering the question of plaintiff's negligence was not erroneous because of the omission of any reference to the husband's negligence.

8. NEGLIGENCE (§ 117) — PLEADING — IMPUTED NEGLIGENCE.

In an action for injuries to plaintiff and her automobile, sustained in a collision with a street car, defendant, to escape liability on the ground of negligence of plaintiff's husband, who was driving the automobile, was bound to allege facts in its answer which in law would allow the husband's negligence to be imputed to plaintiff; the mere fact that plaintiff owned the automobile being insufficient to render such pleading unnecessary.

Appeal from Circuit Court, Jackson County; Jas. H. Slover, Judge.

Action by Mabelle Byerley against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas and Bruce Barnett, both of Kanses City, for appellant. Beardsley & Beardsley and C. O. French, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff sued for damages sustained by reason of injuries to her automobile and to her person, caused by a collision of defendant's street car with said automobile in which plaintiff was riding. The collision occurred on Grand avenue, opposite the entrance to Gillham road, a few feet south of the bridge over the Belt Line railway tracks at Twenty-Second street, in Kansas City, Mo. The automobile was going south on Grand avenue on the west side of the street car tracks, and, when it reached the point where Gillham road comes into Grand avenue from the east, the driver of the automobile (plaintiff's husband) drove it out toward the west curb and turned to cross the tracks in order to enter Gillham road. The street car struck the automobile at the front wheels, materially damaging the machine and throwing plaintiff out, permanently scarring her face and otherwise injuring her. The acts of negligence charged are that the street car was run at a high and negligent rate of speed; that no attempt was made to reduce the speed of the car as it approached the entrance to Gillham road, where defendant well knew many persons and vehicles were likely to be passing at the time; that the street car was being run at a speed much above the limit of 20 miles an hour specified by an ordinance in force at the time, and at a rate of speed which was not reasonable at that place and under the circumstances. The answer was a general denial and a plea of contributory negligence on the part of plaintiff.

From Twenty-First street south on Grand avenue the roadway is up a 4 per cent grade, and crosses on a bridge what was Twenty-Second street, but which is now the Belt Line railway tracks. A few feet south of this bridge Gillham road opens from Grand avenue to the east. It is one of the park driveways of the city, and at this point, both on Gillham road and on Grand avenue, there is, as stated, much travel by the public. The collision occurred about 9 or 9:30 p. m. Plaintiff's husband was driving the machine, sitting on the right-hand side of the front seat, and his wife, the plaintiff, was sitting on the same seat at his...