Crockett v. Kanas City Rys. Co.

• Decision Date: 12 June 1922
• Docket Number: No. 22448.,22448.
• Citation: 243 S.W. 902
• Parties: CROCKETT v. KANAS CITY RYS. CO.
• Court: Missouri Supreme Court

243 S.W. 902

CROCKETT v. KANAS CITY RYS. CO.

No. 22448.

Supreme Court of Missouri, Division No. 2.

June 12, 1922.

Motion for Rehearing Denied August 28, 1922.

Appeal from Circuit Court, Jackson County; Daniel D. Bird, Judge.

Action by Sallie Crockett against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter remittitur.

The petition charged negligence, in that the motorman operating the street car saw, or by the exercise of ordinary care on his part could have seen, the automobile in which plaintiff was riding approaching and in a position of peril and danger, on or near the tracks, and where it would be struck by the street car, if the street car continued on its course, and saw, or by the exercise of ordinary care could have seen, that the automobile driver was oblivious to his peril in time by the exercise of ordinary care on his part to have stopped the street car or slackened its speed, and thereby have avoided striking the automobile, but carelessly and negligently failed to stop or slacken its speed, and carelessly and negligently ran the street car into the automobile.

Plaintiff's instruction No. 1 was as follows:

If you believe and find from the evidence that on October 20, 1917, the plaintiff was riding in an automobile proceeding eastward on Fifteenth street, and that when said automobile reached the intersection of Fifteenth and Olive streets, if you so find, it was turned to the north in order to proceed across the defendant's tracks on Fifteenth street, if you so find, and that as said automobile was crossing the north or west bound track of the defendant at said point it was run into by defendant's street car, if you so find, which street car was proceeding westward along said track, and that as a direct result thereof the plaintiff was injured, if you so find, and if you further believe and find from the evidence that defendant's motorman operating said street car saw, or by the exercise of ordinary care could have seen, said automobile approaching and in a position of peril and danger on or near said track, where it would be struck by said street car if said street car continued on its course, if you so find, and saw, or by the exercise of ordinary care could have seen, that the driver of said, automobile was oblivious to said peril, if you find the driver was oblivious, in time thereafter by the exercise of ordinary care on the part of said motorman to have stopped said street car or to have slackened the speed thereof, and thereby have avoided striking said automobile, if you so find, and if you further find that said motorman carelessly and negligently, if you so find, failed to stop said street car or to slacken the speed thereof, and carelessly and negligently ran said street car into and against said automobile, if you so find, and that the injuries, if any, to plaintiff were directly caused by the carelessness and negligence of said motorman in the foregoing respects, if you find he was careless and negligent in said respects, then under the law your verdict must be in favor of the plaintiff and against the defendant, and this is true even though you should believe and find from the evidence that the driver of said automobile was negligent in going upon or crossing said track, and you will assess plaintiff's damages at such sum as you believe and find from the evidence will be fair and just compensation to plaintiff for said injuries, if any, not exceeding the sum of $35,000, the amount sued for in plaintiff's petition.

Charles N. Sadler, John B. Mumma, and Mont. T. Prewitt, all of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

DAVID B. BLAIR, J.

The action is in damages for personal injuries. The verdict was for plaintiff (respondent here) in the sum of $15.000. After unsuccessful motions for new trial and in arrest of judgment, defendant has appealed.

At the time of her injuries the plaintiff was riding in the rear seat of a Ford automobile, owned and driven by her husband. Sitting in the front seat with Mr. Crockett was one Thomas F. Ridley, and sitting in the rear seat with plaintiff were Mrs. Ella M. Ridley and a 7 year old grandchild of the plaintiff. Plaintiff, her husband, the grandchild, and the Ridleys had been visiting some friends in Kansas City, Kan., and Mr. Crockett was driving Ridley and his wife to their home near Twelfth and Olive streets in Kansas City, Mo. About the time they were passing over the Twelfth street viaduct a slight rain began to fall, which rendered slippery the streets and the rails of the street car tracks. The automobile proceeded eastward along Fifteenth street until it reached Olive street, which is approximately 24 blocks east of Main street. When the automobile was turned northward into Olive street, a collision occurred between said automobile and met of defendant's street cars, which was proceeding westward along Fifteenth street upon the north track. The accident occurred about 8:30 in the evening, October 26, 1917. Suit was not filed until over 2 years after the accident, and trial occurred in May, 1920, in the circuit court of Jackson county. The foregoing facts are uncontradicted.

Plaintiff's testimony tended to show the following facts: The Ford automobile was proceeding eastward along the south side of Fifteenth street a: the rate of 10 or 12 miles an hour until it leached Olive street. That portion of Fifteenth street is a very wide street (some of the witnesses put its width at 125, to 150 feet), and is practically level. When the automobile reached Olive street, it was turned northward to the right of the intersection of the center of the two streets, and its speed had been reduced to 4 or 5 miles an hour as the automobile started to make the turn. Defendant's car in question was moving westward upon the north track, and was observed by some of the occupants of the automobile at about the west line of Wabash street, the street east of Olive. The street car was moving at a speed of 20 to 30 miles per hour. The automobile almost cleared the north rail of the north track when the street car struck it near the rear of the right side, causing the automobile to whirl once or one and a half times around. Mr. Ridley was thrown through the wind shield upon the hood of the automobile, and rendered unconscious. Plaintiff's grandchild was thrown out of the automobile upon the street. The plaintiff remained in the car, but was rendered unconscious by the impact of the collision. Her injuries, which were serious, will be more fully discussed in the opinion upon consideration of the question of the excessiveness of the verdict.

The automobile did not have chains on the tires, and a light rain or drizzle was falling at the time, rendering the pavement and the street car rails very slippery. The street car ran a distance of a half or three-quarters of a bock westward after the collision before it was brought to a standstill. Some of the witnesses testified that it traveled nearly to Park street, the first street west of Olive street. Only four or five passengers were in the street car.

The evidence on the part of the defendant tended to show the following facts: The speed of the street car was from 10 to 12 miles per hour. The motorman observed the automobile in which the plaintiff was riding at or near Park street at about the time the street car reached Wabash street. The automobile was proceeding eastward at the rate of about 25 miles per hour. The street car had reached and passed the center of Olive street when the automobile swerved suddenly and unexpectedly to the northeast, and the collision occurred about the west line of Olive street. The collision occurred before the motorman could stop or check the speed of the car. The right front corner of fender of the street car struck the front wheel of the automobile.

The testimony on the part of the plaintiff tended to show that the street car, going at a speed of 25 to 30 miles per hour under ordinary conditions, with a wet track, could have been stopped within 60 to 70 feet, and, with slippery rails, within 10 feet farther; that the same car under the same conditions could be stopped within 40 or 50 feet when moving at 20 miles per hour; within 30 or 35 feet when moving 15 miles per hour, and within 20 or 25 feet when moving 10 miles per hour. The motorman testified that he actually did stop the car within 90 feet after he applied the brakes, used the sand, and reversed the power. Plaintiff's evidence tended to show that no bell or gong was sounded by the street car as it approached Olive street. The motorman testified that he sounded the gong, set his brakes, and applied the sand and the reverse as soon as it appeared that the automobile was attempting to cross in front of the street car.

Several acts of negligence were alleged in the petition, but the case was submitted to the jury solely on the humanitarian doctrine. The answer of defendant contained a general, denial, and pleaded negligence on the part of plaintiff and her husband in specified particulars, which need not be detailed.

I. Respondent ask that we affirm the judgment below because appellant has failed to print in its brief a fair and concise statement of the facts in the case without reiteration, as required by our rule 15 (228 S. W. viii). Said statement sets out the petition and answer in full, and contains a concise recital of the substance of the testimony of each, witness. We conceive that the rule requires a statement of the ultimate facts which the testimony tends to prove and not a statement of the testimony which tends to establish such facts. The purpose of the rule is to aid the court in quickly obtaining a comprehensive grasp of the issues of fact presented by the testimony. A clearing away of the underbrush by a concise recital of uncontradicted facts, followed by a clear statement of the...