Crews v. Wilson

• Decision Date: 26 February 1926
• Docket Number: No. 25099.,25099.
• Citation: 281 S.W. 44
• Parties: CREWS et al. v. WILSON et al.
• Court: Missouri Supreme Court

281 S.W. 44

CREWS et al. v. WILSON et al.

No. 25099.

Supreme Court of Missouri, Division No. 2.

February 26, 1926.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Floyd B. Crews and another against F. M. Wilson and another, receivers of the Kansas City Railway Company. Judgment for defendants, and plaintiffs appeal. Affirmed.

O. H. Swearingen and Allan T. Finnell, both of Kansas City, for appellants.

Charles N. Sadler and Ben L. White, both of Kansas City, for respondents.

Statement.

BAILEY, C.

On April 16, 1921, the plaintiffs Floyd E. Crews and Ethel Crews filed in the circuit court of Jackson county, Mo., their action for damages against the Kansas City Railway Company, and its receivers, on account of the killing of their six year old son in said city on March 22, 1921, by said railway company.

(1) The petition, in substance, charges that about 7:45 o'clock a. m. on March 22, 1921, while plaintiffs' son, Jack Crews, was walking across Forty-Third street in said city, from south to north at a point about 60 feet east of the east line of Main street in said city, defendants' servants in charge of defendants' east-bound car carelessly and negligently ran said car against and over said Jack Crews and killed him; that the servants of defendants in charge of said car saw, or by the exercise of ordinary care could have seen, Jack Crews coming into a perilous position, and in a perilous position, oblivious of the approach of said car, in time, by the use of ordinary care and caution, with due regard to the safety of the people on said car, to have stopped said car and avoided injuring plaintiffs' son, and negligently failed to do so.

(2) It is further alleged that said car was equipped with a bell or gong, to warn people of danger, and that the motorman in charge of said car negligently failed to sound said gong for the purpose of informing Jack Crews of the approach of said car.

(3) It charges that defendants were guilty of negligence in failing to have the car under control which killed plaintiffs' son, and that he was killed by reason thereof.

(4) It is averred that, by reason of the foregoing acts of negligence, plaintiffs' son was run over and killed as aforesaid, and for which they seek to recover $10,000 as damages, etc.

The answer was a general denial. The case was tried before a jury, and on November 16, 1922, a verdict was returned in favor of defendants. Judgment was entered in due form on the verdict aforesaid. Plaintiffs, in due time, filed a motion for a new trial, which was overruled, and the cause appealed by them, to this court.

It appears from the evidence that on the morning of March 22, 1921, plaintiff Ethel Crews sent her daughter, Evelyn, then about 8 years old, and her son, Jack Crews, than about 6 years old, on an errand to get some cookies. In order to do this errand, it was necessary for the children to cross Forty-Third street near its intersection with Main street in Kansas City, Mo. Forty-Third street runs east and west and Main street north and south. Each of said streets has double-track street car lines with appropriate switches and crossovers. The above switches and crossovers were what are commonly called spring or plug switches, and were not electrical switches. The Rockhill-Independence avenue street cars move north and south on Main street, and east and west on Forty-Third street, reaching the one or the other by the switches mentioned, at their intersection at Forty-Third and Main. As the cars move west on Forty-Third street, they make regular passenger stops from 10 to 14 feet east of Main. The first street east of Main is Walnut street, which runs north and south. The block between Main and Walnut is about 250 feet long. From Walnut to Main there is a slight down grade. The switch point of the west-bound track on Forty-Third street is about 70 or 75 feet east of Main street. It is not an electrical switch point, but a spring or plug. When two cars are meeting — one east bound on the south track and the other west hound on the north track — the west-bound car approaching the switch point is required to slow down until the rear trucks pass said switch point; this to guard against a possible split switch. The width of each track is 4 feet and 8 inches, and the width or space between the eastbound and west-bound tracks is 5 feet. The distance from the south curb of Forty-Third street to the south rail of the north or west-bound track is about 23 feet. The street structure on either side of the rails on Forty-Third street consists of cobblestones, which are rough and coarse; some being about an inch or an inch and a half above the top of the rails.

When Evelyn and Jack Crews reached the south curb on Forty-Third street, a car was moving east bound on the south track and another moving west bound on the north track. The motorman on the west-bound car was sounding his gong and slowing down to about 6 miles per hour. The east-bound car had completely rounded the curve or switch and was moving directly east and passing in front of said children. Evelyn had hold of Jack's hand when they reached the curb and they stopped to let the car pass, but suddenly Jack broke away from his sister and ran as fast as he could immediately behind the east-bound car and directly in front of the west-bound car. At this time the cars had passed the switch points and were accordingly moving with the usual speed; the west-bound car traveling 8 or 10 miles per hour. The evidence discloses that deceased ran directly within 2 or 3 feet behind the eastbound car. He was there and within abaft a foot or 18 inches south of the north rail of the east-bound track when the motorman first saw him. He was then from 5 to 7 feet south of the west-bound car and 2 or 3 feet west of its front. The motorman was keeping a lookout for pedestrians. The instant the motorman saw deceased, he stepped, on the sand, pulled the reverse lever, and notched two points on the controller. This was the quickest possible way to make an emergency stop, and he made the stop within about 15 feet. The deceased was struck by the fender and front part of the car, being under it, and killed. A stop within 15 to 25 feet was shown by the evidence to be a good one. Such other matters as may be deemed important, will be considered later.

Opinion.

I. The court is charged with error in giving instruction 2 (d) at the instance of defendants. It reads as follows.

2 (d). "The jury are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining the credit you will give to a witness; and the weight and value you will attach to a witness' testimony, you should take into consideration the conduct and appearance of the witness upon the stand, the interest of the witness, if any, in the result of the trial, the motives actuating the witness in testifying, the witness' relation to or feeling for or against plaintiffs or defendants, the probability or improbability of the witness' statements, the opportunity the witness had to observe and to be informed as to matters respecting which the witness gave testimony, the inclination of the witness to speak truthfully or otherwise regarding matters within the knowledge of such witness. If you believe that any witness is honestly mistaken as to any material fact about' which such witness gave testimony, you are at liberty to disregard that part of such witness' testimony; but, if you believe that any witness has willfully sworn falsely regarding some material fact about which such witness gave testimony, you are at liberty to disregard and. disbelieve that part of such witness' testimony, or the whole of such witness' testimony. All these matters being taken into account with all the facts and circumstances given in evidence, it is your province to give each witness such credit and the testimony of each witness such weight and value as you may deem proper."

The above instruction, in substance, has received the approval of this court running through a period of 70 years, in many decisions, some of which are as follows: State v. Mix, 15 Mo. loc. cit. 159; Gillett v. Wimer, 23 Mo. loc. cit. 78; State v. Dwire 25 Mo. 553; Paulette v. Brown, 40 Mo. loc. cit. 57; State v. Elkins, 63 Mo. 10C. cit. 166; Brown v. Railway Co., 66 Mo. loc. cit. 600; State v. Patrick, 17 S. W. 666, 107 Mo. loc. cit. 162; McFadin v. Catron, 25 S. W. 506, 120 Mo. loc. cit. 270; State v. Wright, 35 S. W. 1145, 134 Mo. loc. cit. 406; State v. Hudspeth, 60 S. W. 136, 159 Mo. loc. cit. 208;. State v. Swisher, 84 S. W. 911, 186 Mo. loc. Cit. 7; State v. Bond, 90 S. W. 830, 191 Mo: loc. cit. 561; State v. Feeley,...