Craine v. Metropolitan Street Railway
| Decision Date | 10 December 1912 |
| Citation | 152 S.W. 24,246 Mo. 393 |
| Parties | RICHARD H. CRAINE, Appellant, v. METROPOLITAN STREET RAILWAY, DAVID WILSON and KANSAS CITY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Herman Brumback, Judge.
Affirmed.
Rush L Fisette and Bird & Pope for appellant.
(1) The court erred in giving defendants' instructions in the nature of demurrers to plaintiff's evidence at the close of plaintiff's evidence. (2) The court erred in overruling plaintiff's motion to set aside the involuntary nonsuit taken by plaintiff after the giving of said instructions of defendants in the nature of demurrers to plaintiff's evidence. Ordinary care means such care as an ordinarily prudent person would exercise under the same or similar circumstances. Mitchell v. Railroad, 132 Mo.App. 294; Perrette v. Kansas City, 162 Mo. 251; Bradley v. Railroad, 138 Mo. 310; Diamond v Kansas City, 120 Mo.App. 185; Dunphy v. Stock Yards Co., 118 Mo.App. 507; Schroeder v. Transit Co., 111 Mo.App. 67; Kube v. Transit Co., 103 Mo.App 593; Stanley v. Railroad, 114 Mo. 606; Loewer v. Sedalia, 77 Mo. 446. The fact that Craine knew of the danger would not necessarily preclude him from recovery. The use of a street, sidewalk, bridge or crossing known to be defective or obstructed, which is not so obviously dangerous that no prudent person would attempt to use it, is not negligence as a matter of law which will bar a recovery for an injury caused by the defect or obstruction. Phelan v. Paving Co., 227 Mo. 666; Waltmeyer v. Kansas City, 71 Mo.App. 354; Maus v. Springfield, 101 Mo. 613; Gerdes v. Foundry Co., 124 Mo. 347; Cohn v. Kansas City, 108 Mo. 393; Barr v. Kansas City, 105 Mo. 550; Smith v. St. Joseph, 45 Mo. 449; Rusher v. Aurora, 71 Mo.App. 418; Beauvais v. St. Louis, 169 Mo. 500; Deland v. Cameron, 112 Mo.App. 704; Loewer v. Sedalia, 77 Mo. 431; Brands v. Car Co., 213 Mo. 698; Mitchell v. Railroad, 132 Mo.App. 152; Womach v. St. Joseph, 168 Mo. 241; Pauck v. Provision Co., 159 Mo. 478; Kossman v. St. Louis, 153 Mo. 298; Chilton v. St. Joseph, 143 Mo. 202; Flynn v. Neosho, 114 Mo. 571; Boulton v. Columbia, 7 Mo.App. 523; Culverson v. Maryville, 67 Mo.App. 347; Pembroke v. Railroad, 32 Mo.App. 62; Railroad v. Prescott, 59 F. 654; Railroad v. Crist, 116 Ind. 446; 7 Am. & Eng. Ency. Law (2 Ed.), 392, 411; Huhn v. Railroad, 92 Mo. 447. And whether the danger was so obvious and imminent as to make it contributory negligence to cross the bridge in question is generally a jury question. Deschner v. Railroad, 200 Mo. 310; Mockovik v. Railroad, 196 Mo. 550; Allen v. Transit Co., 183 Mo. 411; Curtis v. McNair, 173 Mo. 271; Leslie v. Railroad, 88 Mo. 51; Adams v. Railroad, 100 Mo. 556; Millsap v. Beggs, 122 Mo.App. 11; Francis v. Railroad, 127 Mo. 658; O'Melia v. Railroad, 115 Mo. 219; Wyatt v. Railroad, 55 Mo. 485. The fact that a person had another route open to him will not debar his recovery, unless the taking of that route was the only prudent thing to do. Phelan v. Paving Co., 227 Mo. 666; Ashley v. Road Co., 99 Mo.App. 186; Conner v. Nevada, 188 Mo. 149; Curtis v. McNair, 173 Mo. 271; Kossman v. St. Louis, 153 Mo. 293; Schroeder v. Transit Co., 111 Mo.App. 67; Culverson v. Maryville, 67 Mo.App. 347; Loewer v. Sedalia, 77 Mo. 413; Graney v. St. Louis, 141 Mo. 180. Plaintiff's conduct was undoubtedly influenced by others going over the bridge, and by the fact that defendants furnished a flagman to direct plaintiff and others over the bridge. Curtis v. McNair, 173 Mo. 271; Flynn v. Railroad, 78 Mo. 195; Brunke v. Tel. Co., 115 Mo.App. 36; Francis v. Railroad, 127 Mo. 675; Railroad v. Prescott, 59 F. 654; Reed v. Railroad, 94 Mo.App. 371; Bohn v. Railroad, 106 Mo. 429; 7 Am. & Eng. Ency. Law (2 Ed.), 378. The defendants were clearly negligent in leaving the open space next to the driveway on the bridge. Foster v. Swope, 41 Mo.App. 145; Powers v. Insurance Co., 91 Mo.App. 55; Loewer v. Sedalia, 77 Mo. 431; Graney v. St. Louis, 141 Mo. 180; Wiggin v. St. Louis, 135 Mo. 558. Where defendants' negligence has influenced plaintiff's conduct, they are estopped from making the defense that the plaintiff was negligent. Millsap v. Beggs, 122 Mo.App. 11. Where defendants' negligence concurs with an accident, defendants are liable. 7 Am. & Eng. Ency. Law (2 Ed.), 398. Sufficiency of barricade as a warning is a question of fact for the jury. Feldkamp v. Kansas City, 75 P. 464; 29 Cyc. 475. It must be presumed that each of the defendants thought the bridge was reasonably safe, or else they would have closed it for traffic. How can they now say that it was so obviously dangerous that no prudent man should have ventured over it? And especially in view of the fact that they provided a flagman to direct the traveling public across the bridge?
A. F. Evans, Hunt C. Moore, John H. Lucas, and Cowherd, Ingraham, Durham & Morse for respondents.
(1) Under the evidence the defendants were not guilty of any negligence toward the plaintiff. Phelan v. Paving Co., 227 Mo. 704; District of Columbia v. Moulton, 182 U.S. 576; Haller v. St. Louis, 176 Mo. 613; Cohn v. City of Kansas, 108 Mo. 393. (2) Under the evidence plaintiff was guilty of such contributory negligence as to bar a recovery. Cohn v. Kansas City, 108 Mo. 393; Woodson v. Railroad, 224 Mo. 701; Wheat v. St. Louis, 179 Mo. 581; Kaiser v. St. Louis, 185 Mo. 373; Diamond v. Kansas City, 120 Mo.App. 185.
This is an appeal from the circuit court of Jackson county, in an action brought by Richard H. Craine against the 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 29 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 29, 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 would 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 fifteen or twenty 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 twenty or twenty-five feet above the tracks of the Kansas City Belt Line Railway Company. There was a space of twenty-seven 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...
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