Dahmer v. Metropolitan St. Ry. Co.

• Citation: 136 Mo. App. 443,118 S.W. 496
• Parties: DAHMER v. METROPOLITAN ST. RY. CO.
• Decision Date: 29 March 1909
• Court: Court of Appeal of Missouri (US)

118 S.W. 496

136 Mo. App. 443

DAHMER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

March 29, 1909.

Rehearing Denied April 19, 1909.

1. TRIAL (§ 156)—DEMURRER TO EVIDENCE.

The court in passing on a demurrer to plaintiff's evidence must consider the proof in the light most favorable to the maintenance of the cause of action pleaded.

2. STREET RAILROADS (§ 93)—OPERATION OF CARS—CARE REQUIRED OF MOTORMAN.

A motorman, seeing that a traveler intends to cross the track ahead of the car, must make reasonable use of the means at hand to check the speed of the car, so that the traveler may cross in safety, irrespective of the traveler's negligence.

3. STREET RAILROADS (§ 93)—USE OF STREETS.

A traveler and a motorman in charge of a street car are each rightfully on the public streets, and neither may require the other to make way for him, but each must employ reasonable care to avoid a collision, and, since the street car is the more dangerous vehicle, the humanitarian principle imposes on the motorman the additional duty of being watchful to discover the peril of travelers, and, on becoming aware of its existence, to make every reasonable effort to remove it.

4. STREET RAILROADS (§ 117)—COLLISIONS— NEGLIGENCE—EVIDENCE.

In an action for injuries in a collision with a street car, evidence held to require submission to the jury of the company's negligence for failing to exercise proper care after the discovery of a traveler's peril.

5. APPEAL AND ERROR (§ 882)—INVITED ERROR —RIGHT TO COMPLAIN.

Under the rule that a party, though not bound by a position he is compelled to take by adverse rulings of the court, is bound by one he voluntarily assumes, a defendant voluntarily treating the issue of contributory negligence as one for the jury cannot complain of the submission of the issue, though plaintiff was guilty

of contributory negligence as a matter of law.

6. DAMAGES (§ 131)—PERSONAL INJURIES— EXCESSIVE DAMAGES.

A traveler on a street was injured in a collision with a street car. Three ribs were broken, and he received some cuts and bruises. He paid his doctor $75, and at the time of the trial, over a year after the injury, he had not fully recovered. Held, that a verdict for $1,000 was not excessive.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by John E. Dahmer against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and F. G. Johnson, for appellant. Elliott & Ehinger and Ulmann & Miller, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries caused by the collision of an electric street car operated by defendant with the wagon in which plaintiff was riding. The cause of action is founded on the alleged negligence of defendant in the operation of the car. The trial resulted in a verdict and judgment for plaintiff in the sum of $1,000.

The injury occurred on the morning of December 15, 1905, at the intersection of Fifteenth and Campbell streets, public thoroughfares in Kansas City. Campbell street runs north and south, and Fifteenth street east and west. There is a break in the continuity of the south line of Fifteenth street at this crossing. East of Campbell street, Fifteenth street is much wider than it is west of Campbell street. Along the middle of Fifteenth street defendant operates a double-track street railroad. The north track is used by west-bound cars, the south track by cars going east. Plaintiff drove north on Campbell street in a one-horse milk wagon, and intended to cross Fifteenth street and continue northward on Campbell. When he reached the south line of Fifteenth street, he looked to the east and saw a car coming west on the north track. He testified that the car at this time was east of Harrison street. If this statement is accurate, the car was from 450 to 500 feet east of the point of collision. Plaintiff drove on in a slow trot, which he described as being no faster than an ordinary walk. When his horse was about 25 feet from the north track, plaintiff looked again, and observed that the approaching car was about 250 feet from the crossing. He did not look again in that direction until his horse was on the north track. Then he discovered that a collision was imminent, and attempted to escape by hurrying the horse, but his efforts were unavailing. The car struck the wagon at about the front wheels with a force so violent that plaintiff was hurled through the window of the front vestibule, and sustained the injuries of which he complains. After the collision, the car ran about 125 feet before it was brought to a standstill. From the moment plaintiff entered Fifteenth street there was no obstruction to vision between the wagon and the car. Plaintiff knew of the approach of the car, and the motorman states that he observed the wagon. Witnesses for plaintiff stated that the car was going fast, but they did not attempt to give the rate of speed in miles per hour. The motorman testified that in approaching Campbell street the car ran at the rate of 12 to 14 miles per hour. There is substantial evidence introduced by plaintiff to the effect that the motorman made no effort to stop or check the speed of the car until the collision...