DeMoss v. Kansas City Railways Company
| Decision Date | 30 December 1922 |
| Citation | 246 S.W. 566,296 Mo. 526 |
| Parties | NELLIE DeMOSS v. KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court -- Hon. Daniel E. Bird, Judge.
Reversed.
Charles N. Sadler, E. E. Ball and Louis R. Weiss for appellant.
(1) The court erred in refusing to give the peremptory instructions in the nature of demurrers, requested by defendant. (a) The motorman had a right to assume the automobile would stop. Boyd v. Railroad, 105 Mo. 371, 381; McCreery v United Rys., 221 Mo. 18; Lewis v. Met. St. Ry Co., 181 Mo.App. 421; Markowitz v. Railroad, 186 Mo. 358; Hicks v. Citizens Ry. Co., 124 Mo. 115; Gessner v. Met. St. Ry. Co., 137 Mo.App. 53; Barnard v. Met. St. Ry. Co., 137 Mo.App. 691; Lawson Legg v. Met. St. Ry. Co., 154 Mo.App. 290; Dering v. Milwaukee Elec. Ry., 176 N.W. 343. (b) Failure to ring the bell is not negligence when not the proximate cause of accident. Gubernik v. United Rys., 217 S.W. 34; Murray v. Transit Co., 176 Mo. 189; Hutchinson v. Railroad, 195 Mo. 549; Peterson v. Railway Co., 270 Mo. 67; Barkley v Mo. Pac. Ry., 96 Mo. 378. (c) Even if plaintiff had not seen the car and observed it start, failure to ring the bell is not actionable negligence under the circumstances. State ex rel. v. Ellison, 271 Mo. 470; Amer. Brewing Assn. v. Talbott, 141 Mo. 683; Battles v. Railways Co., 178 Mo.App. 613; Warner v. Railroad, 178 Mo. 125; McGee v. Railroad, 214 Mo. 544; Heintz v. Transit Co., 115 Mo.App. 667; McManamee v. Mo. Pac. Ry. Co., 135 Mo. 449; McCabe v. Inter. St. Ry., 97 N.Y.S. 353. (2) The court erred in giving plaintiff's instruction numbered one over the objection of defendant. It authorizes a recovery upon the finding of facts which the evidence conclusively shows was not the proximate cause of her alleged injuries. Gubernik v. United Rys., 217 S.W. 34; Murray v. Transit Co., 176 Mo. 189; Barkley v. Mo. Pac. Ry., 96 Mo. 378; Peterson v. Railways Co., 270 Mo. 67; Hutchinson v. Railroad, 195 Mo. 549.
S. L. Trusty, E. H. Gamble and McCanles, Kennard & Trusty for respondent.
(1) The court did not err in refusing to peremptorily instruct the jury to find for defendant, because: (a) The demurrer was general in form. Torrence v. Pryor, 210 S.W. 432; Schinogle v. Baughman, 228 S.W. 901. (b) Starting of the car forward suddenly off the hill into a busy intersection, with his head turned backwards, without warning, in violation of the custom to give warning, when the street was slippery, and when the motorman knew that an automobile was approaching and knew that his car would swing the curve and suddenly bring it closer to the automobile, created an issue of fact for the jury. The issue is the same as if motorman had violated a custom to stop at the crossing. Swinehart v. Rys. Co., 233 S.W. 59; Majors v. K. C. Rys. Co., 228 S.W. 517; McGurgan v. Railroad Co., 106 N.Y.S. 201; Lipshitz v. Third Ave. Ry. Co., 179 N.Y.S. 631; Hill v. Brooklyn H. Ry. Co., 130 N.Y.S. 387; McNamara v. Met. St. Ry. Co., 133 Mo.App. 645; Dahmer v. Met., 136 Mo.App. 448; Eskridge v. St. Ry., 170 Mo.App. 548; Malone v. Rys. Co., 232 S.W. 782; Berkley v. Mo. Pac. Ry. Co., 96 Mo. 378; Weber v. Rys. Co., 213 S.W. 535; Rowe v. Hammond, 172 Mo.App. 203; Gillispie v. Pryor, 204 S.W. 835; Harrington v. Dunham, 273 Mo. 414; Willinsky v. Nassau Railroad Co., 146 N.Y.S. 142; Lackey v. United Rys. Co., 231 S.W. 956; Jackels v. Rys. Co., 231 S.W. 1023. (c) There is no plea of contributory negligence and no plea that the driver was guilty of negligence imputable to plaintiff, and there is no issue of contributory negligence involved, hence if defendant was guilty of any negligence contributing to the accident the issue was for the jury. Authorities above. (d) By its instruction numbered one defendant admitted liability if the motorman did not see the automobile at the time he started his car, and also if automobile was not then in place of safety. This is the theory of plaintiff's instruction, hence defendant cannot complain. Torrence v. Pryor, 210 S.W. 432; Schinogle v. Baughman, 228 S.W. 901. (e) By its instruction numbered 10 defendant admitted the sufficiency of the evidence under the peril doctrine. Defendant created the peril. Torrence v. Pryor, 210 S.W. 432; Schinogle v. Baughman, 228 S.W. 901. (2) The court did not err in giving plaintiff's instruction numbered one, because: (a) Failure to warn and the other elements of negligence were submitted in the conjunctive. Mayer v. Railroad, 198 S.W. 839; Rigg v. Railroad, 212 S.W. 878; McIntyre v. Railroad, 227 S.W. 1047; Brossell v. Box Co., 220 S.W. 984. (b) By its instruction numbered one defendant admitted liability if the motorman did not see the automobile at the time he started his car and also if automobile was not at that time in a place of safety, and the jury found against this instruction and defendant's demurrer was general. (c) Plaintiff's instruction is in the nature of a peril-doctrine instruction. It required a finding that it was perilous to start the car forward and that the motorman knew such fact when he started the car. Swinehart v. Rys. Co., 233 S.W. 62. (d) Defendant's refused instruction numbered 10 admits liability if the motorman knew of the peril in time to have prevented the collision, and plaintiff's instruction required a finding that the motorman knew of such danger when he started the car and hence knowledge in time to have prevented the collision. Torrence v. Pryor, 210 S.W. 432; Schinogle v. Baughman, 228 S.W. 901. (e) The street was slippery, the motorman knew the automobile was approaching, it was customary to sound a warning before starting the car, he knew his car would turn the curve in the path of the automobile and quickly shorten the distance and that he was starting down hill, and yet he suddenly started the car forward with his face turned backwards. Authorities under (b) point 1; Dahmer v. Met. St. Ry. Co., 136 Mo.App. 448. (f) The wet and slippery condition of the street was not made the basis of liability, but merely a fact to be found by the jury and one of the elements to be considered in determining whether or not the starting of the car forward under the circumstances shown was calculated to create peril.
OPINION
In Banc.
The action is in damages for personal injuries. From a judgment for $ 15,000 in favor of the plaintiff below defendant has appealed. By reason of a dissent to an opinion written in Division Two affirming the judgment below, the case came here, where, after argument anew, the divisional opinion was rejected. In the view we take of the case we need consider only one assignment of error discussed in the divisional opinion, to-wit: The sufficiency of the evidence to support the verdict for plaintiff.
On May 18, 1918, at about four or five o'clock p. m., plaintiff and her husband, John H. DeMoss, were proceeding eastward upon Fifteenth Street in Kansas City, Missouri, in an automobile owned and operated by Mr. DeMoss, and collided with a street car of defendant at the intersection of Prospect Avenue and said Fifteenth Street.
Defendant operated its cars over both streets by means of double tracks. Fifteenth Street is approximately level at Prospect, while the latter street is down grade to the north at the intersection. One of defendant's cars moving northward on the east track in Prospect Avenue stopped at the south line of Fifteenth Street to receive and discharge passengers. When it moved forward it turned to the left toward the north track in Fifteenth Street to proceed westward on that street. Just as the street car was rounding the turn the automobile in which plaintiff was riding crashed into the side of the car near or possibly back of the middle, damaging the automobile and seriously injuring plaintiff.
Plaintiff's evidence tended to show that the down grade in Prospect Avenue caused the street car to move forward more quickly that it would have moved on level ground in making such a turn; that she saw the car standing in Prospect Avenue when the automobile was seventy-five feet away, and that she saw it start forward suddenly when the automobile was about thirty-five or forty feet away. Plaintiff immediately exclaimed to her husband, "Oh, papa," and at the same time he applied the brakes; but the automobile continued to move forward until it struck the street car. The automobile had no chains on its wheels, although it was equipped with them. The pavement was wet and slippery from rain. Plaintiff testified that if the automobile had not skidded it would have stopped. The automobile was moving nine or ten miles per hour when plaintiff saw the street car start forward and the brakes of the automobile were applied. Plaintiff kept her eye on the street car from the time she first saw it standing at the south line of Fifteenth Street until it started forward. She testified that no gong was sounded before it started, and that the motorman was looking back in the direction where the loading of the car was taking place and did not look west as he started the street car. It was broad daylight, and the inference is clear that if the motorman had looked to the west he would have seen the automobile approaching. There was ample room in Prospect Avenue west of the street car for the automobile to turn into that street and pass the car without striking it.
The negligence relied upon by plaintiff was the starting of the street car forward into the street intersection without warning and without the motorman looking west before starting the same, when the automobile was approaching over a wet and slippery street. The...
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