Draper v. Dunham

• Decision Date: 20 February 1922
• Docket Number: No. 14288.,14288.
• Parties: DRAPER v. DUNHAM et al.
• Court: Missouri Court of Appeals

239 S.W. 883

DRAPER v. DUNHAM et al.

No. 14288.

Kansas City Court of Appeals. Missouri.

February 20, 1922.

Rehearing Denied April 3, 1922.

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

"Not to be officially published."

Action by Charles Draper against Robert J. Dunham and another, as receivers of the Metropolitan Street Railway Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Chas. N. Sadler and Louis R. Weiss, both of Kansas City, for appellants.

Park & Brown and Maurice Weinberger, all of Kansas City, for respondent.

TRIMBLE, P. J.

This case was here once before on appeal by the defendant. See Draper v. Kansas City Rys. Co., 199 Mo. App. 485, 203 S. W. 646. It is an action by a pedestrian upon the streets of Kansas City to recover damages on account of personal injuries received through being struck by a street car. Plaintiff recovered judgment in the sum of $5,000, and defendant has appealed.

The case as submitted rests upon two specifications of negligence contained in the petition, namely, an excessively great and dangerous rate of speed, and a violation of the humanitarian rule by the motorman in charge of said car. Defendants' theory is that plaintiff was guilty of contributory negligence as a matter of law in getting upon the track, and therefore he cannot recover on the ground of negligent speed, and that, under the facts as developed at this trial, there is no room for the application or submission of the humanitarian rule.

Ninth street runs east and west, and has two street car tracks thereon, the west-bound lying north of the east-bound track. Bales avenue runs north and south, but there is a "jog" in said street at Ninth, i. e., Bales avenue runs north to Ninth and then there is an offset in Bales of about 60 feet to the east, but as it continues north from Ninth it is not called Bales avenue, but Bales court.

Plaintiff was a passenger standing beside the motorman on the front end of a west-bound car on Ninth, and when it reached the west side of Bales court, running north' from Ninth, it stopped at the regular stopping place, and plaintiff alighted therefrom, intending to go south across the tracks and said Ninth street to some place at Tenth street and Bales avenue. As plaintiff on the car came to the stopping place, he was looking to the west, and, as he got off, he noticed that no east-bound car was coming. He could see west for two blocks to Benton boulevard, but could not see beyond that, for the reason that west of said boulevard there was a decided fall in Ninth street, so as to hide a street car at a point any distance west of Benton boulevard. It was 1,194 feet from Bales to Benton boulevard. As he got off his car, plaintiff, therefore, saw and knew no car was coming from the west, at least none was this side of Benton boulevard, two blocks, or nearly 1,200 feet, away.

Plaintiff had lived in Kansas City for 28 years, and during that time had observed and become well acquainted with the speed at which street cars were run. He says that as he got off his car he saw another car on the same track plaintiff's car was on, about two blocks back east of, and following, plaintiff's car. Thus at the time he got off the front end of his car he knew no car was on the east-bound (or south) track for two blocks to the west, but was aware that there was a west-bound car on the same track his car was on two blocks to the east.

The car plaintiff alighted from stood motionless about "a minute" or "a moment or two" to allow two ladies to get on, and then it started on west, and, as the rear end came to where plaintiff was standing, facing the west, he started south to go across the two tracks. He walked across the west-bound (or north) track, and as he got "right at the south side of the north track," or "just at the edge of the car on the south rail of the north track," he glanced westward along the other or east-bound track for a distance of "Oh, about 30 feet, 30 to 50 feet, something like that; I couldn't say." Plaintiff said this in answer to a question from his counsel as to how far up the street west "could you see at that time?" Presumably, the reason he could see no farther than he did see was because of the car from which he had just alighted. It passed him, and was moving westward, and, although he did not say how far away it was when he looked, he does say: "I looked at the edge of the car, and saw there was no car then, and I started across the south track." While he first stated as above that he could see from 30 to 50 feet, yet he afterwards said, "Well, it was about 30 feet," and twice after that said it was 30 feet. Later, on cross-examination, he said: "Well, I should judge about 50 or 75, something like that; pretty hard matter to tell; I looked up the track there, and I got to the edge, and I glanced up to see if I had plenty of time—if there was nothing in the way." Then he said, "Perhaps it was 50, I should say; yes"; that his judgment was that it was 50 feet that he saw up the track. Whatever the distance was, he saw no car, nor did he hear any. After making this glance he immediately started to cross the east-bound track, and says he was in the middle thereof when some one hollered "Hey" at him, and he turned and looked, thinking some one from the car he had gotten off of called to him, and then saw a car coming from the west about 50 feet away, traveling at a rate of 30 miles per hour. His first thought was to get back onto the north track, but he remembered the car on that track following the one he had alighted from, and, fearing lest he would step in front of that car, he became confused, and, abandoning that idea, endeavored to go on across the track he was on, but before he could get off the south track the car was right on him, and he saw he was going to get caught, so he "just jumped," and the car struck him, and he knew nothing further until he returned to consciousness after the whole thing was over. He says that in his confusion and bewilderment he stood in the center of the track until just before he was struck, when he jumped straight up, apparently to permit the basket or fender in front of the car to catch him.

Plaintiff read in evidence the deposition of the motorman of the car that struck him, taken by the defendants. Said deposition showed there was a "considerable grade" from Benton boulevard to Bales avenue or Bales court, and the car that struck plaintiff was coming down grade. The stopping place for east-bound cars was also on the west side of Bales. The accident happened between 7 and 8 o'clock on the morning of August 13, 1915.

The motorman said that when he first saw plaintiff the latter was 300 feet away, standing at the "white post" at the edge of the sidewalk on the north side of the track. (This white post marked the stopping place of the west-bound cars, and a similar "white post" on the opposite or south side marked the stopping place for the east-bound cars.) The motorman further said plaintiff "just looked up and started west at an angle—west or southwest—right straight toward me; I supposed he saw the car, as he was looking straight at me, and there was no other car or anything in the street. I rang my bell, and when I got within about 30 feet of him he stepped on my track; I hollered, and he stepped back, so that the end of the fender caught him, and threw him against the corner of the car and between the two tracks." The motorman further said he was going about 15 miles per hour; that when plaintiff first stepped into a position where the car would strike him he was about 30 feet in front of the car; that he (the motorman) had been ringing his bell, and when he saw plaintiff was going to get where the car would strike him he reversed his car, that being the quickest way to make a stop, and did all he could to stop, but was unable to do so; that it was 20 feet from the "white post" to the point where plaintiff was struck; that he (the motorman) did not slacken his car when he saw plaintiff start toward the track, but did ring his bell, and slackened speed when plaintiff' was about 30 feet away, and was stepping on the track, and at this time he (the motorman) hollered and reversed his car. The motorman says he made no effort to stop his car until plaintiff started to step on the south track; that he stopped the car in this instance in 60 feet; that he did not use the brakes nor the standing device; that he would not use all of the appliances, as they wouldn't all work together with safety to the passengers, but that he could, and did, stop the car in 60 feet, and there was nothing he could have done to stop any quicker.

If plaintiff, as he says, got in the middle of the track, and became confused or uncertain what to do, and stood there until he was struck, then the mere fact that in his confusion and bewilderment he did not get off would not defeat his recovery. Strauchon v. Metropolitan St. R. Co., 232 Mo. 587, 600, 135 S. W. 14. But the motorman makes no claim that plaintiff acted as if he were going to get off the track after getting on, but that plaintiff came toward the track with a full view, and with every indication that he saw the car coming, and consequently the motorman thought the plaintiff would not get on the track, but would stop before doing so, and that he (the motorman) had no notice to the contrary until the plaintiff, when the car was only 30 feet away, stepped into the danger zone, but it was then too late to avoid the injury.

Moyer, a witness for plaintiff, was an employee of a lumber company driving a lumber wagon. He was on his wagon at Bales avenue on the south side of the track (about 60 feet west of Bales court) when the car plaintiff was on stopped, and he says he saw plaintiff alight from the front end thereof, and at that time there was no car in sight back west or coming on the eastbound track; that he looked west because he was intending to...