Davis v. City Light & Traction Co.
| Decision Date | 14 June 1920 |
| Citation | 222 S.W. 884,204 Mo.App. 174 |
| Parties | A. G. DAVIS, Appellant, v. CITY LIGHT & TRACTION CO., Respondent |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--Hon. Hopkins B. Shain, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Lamm Bohling & Lamm for appellant.
George F. Longan for respondent.
Plaintiff's action is for damages resulting from personal injury received in a collision with one of defendant's street cars at the intersection of Ohio and 15th street in Seladia. The verdict and judgment in the trial court were for the defendant.
Plaintiff 68 years of age, resides in Sedalia and had been out in the country on some business connected with a farm which was formerly his home. Being ready to return, a former neighbor (Mr. Arnold) who was going into the city offered him a seat in his automobile. A Mr. Jeffries accompanied them. Plaintiff sat alone on the rear seat while Jeffries and Arnold were seated in front, the latter driving. As above stated, Ohio street and 15th street intersect, the crossing being much used by the public. The former of these streets runs north and south, while the latter runs east and west, and defendant's tracks are on the former.
Plaintiff and his companions arrived in Sedalia safely, the automobile was being driven east along 15th street, approaching the crossing, at four or five miles an hour, while the street car was approaching from the north at the rate of about fifteen miles an hour. When the automobile reached Ohio street, both Arnold, the driver, and his companion Jeffries, saw the car coming and Arnold undertook to stop, but something was wrong, the machine only slowed up a little, then started up and got "on the street car track and it just kind of stopped--just about stopped and started again." The street car hit the back end of the auto, mashed one fender, broke one of the rear wheels and carried the auto along the track a distance of fifty-four feet. The street car fender was broken off and glass in front of the car was broken out and plaintiff was hit on the head and body, making a large contusion on his forehead and fracturing several ribs, besides breaking his collar bone. He was unconscious for a time.
The refusal of the automobile to stop, the effort of Arnold to force it--the slowing up and starting forward, were all in plain view of the motorman on the street car and he put on his brake, slackened the speed of his car some, but released the brake which let the car resume its speed.
Plaintiff, as we have stated, was sitting on the back seat, the top of the auto was up and the door shut, but the curtains were not on. His attention was drawn and he did not look in the direction of the street car until a moment before the collision.
Plaintiff offered several instructions which were refused. It is apparent from the record that the trial court considered that unless plaintiff made out a case under the humanitarian rule he failed as a matter of law, for after refusing instructions offered by defendant and most of those offered by plaintiff, it gave one on its own motion submitting the case on that rule, closing with these words; 'that the issue of contributory negligence is withdrawn by the court from the consideration of the jury." That was but another way of ruling that plaintiff was guilty of contributory negligence, as a matter of law, and that, in consequence, he could only recover under the humanitarian rule. Therefore we have only to consider whether the court erred in this view.
Plaintiff had rightly insisted that even if Arnold, the owner and driver of the auto, were guilty of contributory negligence it could not be attributed to him (Moon v. Transit Co., 237 Mo. 425, 435, 141 S.W. 870; Sluder v. Transit Co., 189 Mo. 107, 139, 88 S.W. 648; Neff v. City of Cameron, 213 Mo. 350, 362, 111 S.W. 1139) and that if defendant's servants were negligent, plaintiff should recover unless his own negligence directly contributed to his injury. So we are to judge plaintiff's actions alone in the circumstances attending his injury. We recognize that while a driver's negligence will not be imputed to...
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