Craine v. Metropolitan St. Ry. Co.

• Decision Date: 10 December 1912
• Citation: 152 S.W. 24,246 Mo. 393
• Parties: CRAINE v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Supreme Court

152 S.W. 24

246 Mo. 393

CRAINE v. METROPOLITAN ST. RY. CO. et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1912.

1. TRIAL (§ 178) — PEREMPTORY INSTRUCTIONS — INFERENCES.

In determining the propriety of a peremptory instruction for defendant at the close of plaintiff's case, the testimony in favor of plaintiff is presumed to be true, and he is entitled to every inference that may be drawn from it.

2. PLEADING (§ 64) — CAUSES OF ACTION.

In negligence cases a plaintiff may allege as many grounds of negligence causing the injury as he may desire, provided they are not inconsistent.

3. PLEADING (§ 21) — PETITION — INCONSISTENT CAUSES OF ACTION.

In an action against a municipality and others for injuries suffered by plaintiff who drove through an opening in the floor of a bridge which was being repaired, allegations that the defendants were negligent in failing to close the bridge to public travel are inconsistent with allegations that it was their duty to erect guards for the protection of travelers, for the latter averments negative the right of the city to close the bridge for repair and conversely.

4. MUNICIPAL CORPORATIONS (§ 805) — INJURIES TO PERSONS ON STREETS — NOTICE OF DEFECTS.

That a traveler was well acquainted with the defects in a highways precludes a recovery against a municipality for injuries from defects in such highway on the basis that it negligently failed to give a warning.

5. MUNICIPAL CORPORATIONS (§ 805) — STREETS — INJURIES — CONTRIBUTORY NEGLIGENCE.

Where a plaintiff drove upon a viaduct, he was guilty of such contributory negligence as to bar a recovery for injuries from a fall, where

he knew that the center of the driveway was open, and that the remaining portion was so narrow that he would have to drive within a few feet of the opening, which exposed him to a drop of 20 to 25 feet.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by Richard H. Craine against the Metropolitan Street Railway Company and others. From a judgment overruling his motion to set aside a nonsuit, plaintiff appeals. Affirmed.

Rush L. Fisette, of Rosedale, and Bird & Pope, of Kansas City, for appellant. A. F. Evans and Hunt C. Moore, both of Kansas City, for Kansas City. John H. Lucas, of Kansas City, for Metropolitan St. Ry. Co. Cowherd, Ingraham, Durham & Morse, of Kansas City, for Wilson.

KENNISH, J.

This is an appeal from the circuit court of Jackson county, in an action brought by Richard H. Craine against Metropolitan Street Railway Company, David Wilson, and Kansas City. The petition is in two counts, in the first of which plaintiff seeks to recover damages in the sum of $15,000 for personal injuries received by him while driving across a bridge in said city, and in the second to recover the sum of $175 for the loss of his horse and damage done to his buggy at the time he received his said injuries. At the close of plaintiff's evidence the court instructed the jury to return a verdict in favor of each of the defendants, whereupon plaintiff took a nonsuit, with leave to move to set the same aside. Plaintiff filed a motion to set aside the nonsuit, which was overruled, and he appealed to this court.

The two counts of the petition are the same, except that the first is based on plaintiff's personal injuries, while the second is based on the loss of his horse and damage to his buggy. Each count of the petition, so far as the allegations therein are material to a decision of the questions before us, alleges, in substance, the following facts: That the defendant Metropolitan Street Railway Company runs and operates a line of its street railway upon and over Southwest boulevard, a public street and thoroughfare of defendant Kansas City, within the corporate limits of said city. That on November 29, 1907, and prior thereto, there was a bridge on and along said Southwest boulevard where the said boulevard crosses the tracks of the Kansas City Belt Line Railway Company, and that on said date said bridge was in a defective, unsafe, and dangerous condition, in this, that said defendants had torn out planks and timbers between the street car tracks running over said bridge, and between the tracks and the trusses on one side of said bridge, leaving large openings therein, and had "carelessly and negligently failed to guard the same in any manner to prevent teams and persons from being precipitated down therein, and had carelessly and negligently made said openings without providing material or timbers and planks to put in place of the old timbers and planks torn from said bridge by them as aforesaid." That defendants knew, or by the exercise of ordinary care could have known, of the dangerous and unsafe condition of said bridge, a sufficient length of time before said November 29th to have repaired the same. That defendants failed and neglected to repair said bridge, and "wrongfully and negligently maintained and permitted said bridge to be and remain in said dangerous and unsafe condition, and carelessly and negligently failed and neglected to close the same to public travel." That on said November 29th, at about 11:30 o'clock, a. m., while plaintiff was driving a horse and buggy across said bridge, and while an engine was passing beneath said bridge and throwing out immense volumes of smoke and steam, thereby frightening said horse, the passing of engines beneath said bridge and the throwing out of smoke and steam being a common occurrence, as the defendants well knew, or by the exercise of ordinary care and caution could have known, plaintiff and his horse and buggy, by reason of the defective, dangerous, and unsafe condition of said bridge, were precipitated and thrown down through said opening in said bridge with great force and violence, whereby, etc.

The answer of defendant Metropolitan Street Railway Company was a general denial. Defendants David Wilson and Kansas City each filed an answer containing a general denial and a defense of contributory negligence.

The evidence introduced by the plaintiff tended to show the following facts: The bridge in question was built 15 or 20 years before the date of plaintiff's injury. The defendant street railway company maintained double tracks across it, and the public used it as a thoroughfare for vehicles and pedestrians. As it was constructed and used, it was merely a continuation of Southwest boulevard across and 20 or 25 feet above the tracks of the Kansas City Belt Line Railway Company. There was a space of 27 feet between the trusses on the east side and those on the west side which was used by street cars and vehicles, and outside of the trusses were walks used by pedestrians. Between the inside rails of the two street car tracks there was a space of six feet. On either side of the double tracks was a narrow driveway for vehicles, the distance between the outside rails and the trusses being six feet. At the time of the accident, and for two months prior thereto, defendant David Wilson, under a contract with the defendant city, was engaged in repairing the bridge. The city and the street railway company had an agreement to divide the cost of the repairs between them. In making the repairs the plank flooring between the inside rails of the two tracks had been torn out, leaving an unguarded opening about five feet wide and extending the entire length of the bridge. The flooring between the outside rail and the trusses on the west side had also been torn out, leaving an opening six feet wide, which also extended the full length of the bridge. When these openings were made in the floor, there was placed at each end of the bridge a sign three feet wide and six feet long on which was printed in large letters a warning to the public that the bridge was unsafe and was closed to traffic. Notwithstanding these signs and the openings in the floor, the public continued to use the bridge to a considerable extent as a public thoroughfare for vehicles. During a part of the time the floor was in this condition, an employé of the street railway company was stationed on the bridge and "flagged" cars and vehicles across. With the floor between the tracks and in the driveway on the west side torn out, vehicles could cross the bridge only on the east side, and, as there was not room for a car and a vehicle or for two vehicles to pass on that side, this flagman would signal cars and vehicles to wait at one end of the bridge until a car or vehicle coming from the other direction had crossed, and would then signal the waiting car or vehicle to proceed.

Plaintiff, a building contractor, 63 years of age, lived in Rosedale, a small town near Kansas City, and on the morning of the accident started to drive from his home into the city in a one-horse buggy. He had driven across the bridge frequently while the floor was in the same condition as it was that morning. When he had made these former trips he was sometimes flagged across, and at other times when the flagman was not in sight he would cross without waiting for a signal. He had observed the openings in the floor and was fully aware of the exact condition of the bridge. When he reached the bridge that morning, he did not see the flagman, but started to drive across without waiting for a signal. The six-foot driveway on the east side of the bridge was so narrow that it was difficult to drive between the outside rail of the street car track and the trusses of the bridge, and for that reason he drove with the left wheels of the buggy about a foot inside of the east rail, which brought the left wheels within four feet of...