Draper v. Kansas City Rys. Co.
| Decision Date | 20 May 1918 |
| Citation | 203 S.W. 646,199 Mo.App. 485 |
| Parties | CHARLES DRAPER, Respondent, v. THE KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William O. Thomas, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Clyde Taylor and Charles A. Stratton for appellant.
Park & Brown for respondent.
Plaintiff recovered a verdict and judgment for damages for personal injuries and defendant has appealed. The case must be reversed and remanded as plaintiff confesses error in his instruction on the measure of damages. However as the case is to be retried, it is necessary for us to pass upon the other points raised by defendant.
Defendant's first point is that its demurrer to the evidence should have been sustained. The evidence taken in its most favorable light to plaintiff shows: that on the 13th of August, 1915, he was a passenger on a westbound car belonging to defendant's predecessor, running along Ninth Street, a street in Kansas City, Missouri, running east and west; that when the car reached Bales Avenue in said city he alighted from the front end thereof (the car stopped on the west side of Bales Avenue); that when he alighted he looked toward the east and saw another car approaching about a block away; that he then looked toward the west but could see no further than Benton Boulevard, which was two blocks away, for the reason that the street perceptibly fell from Benton Boulevard toward the west; and that when he looked toward Benton Boulevard there was no eastbound car approaching upon the eastbound track, which ran to the south of the westbound track.
The car remained stationary about one minute to take on one or more passengers. After looking to the west plaintiff proceeded to the rear end of the car in order to pass behind it and cross the street to the south. When he reached a point on the westbound track the car from which he alighted was about ten (10) or fifteen (15) feet away from him and at this point he looked "around the car" but could only see one hundred (100) feet west along the eastbound track. At that time he saw no eastbound car. He then procecded to the south across the eastbound track without again looking in either direction. When he reached the middle of the eastbound track he heard someone shout, "Hey." He thought the shout came from someone who had alighted from the westbound car at the same time he had, so he turned and looked up in the direction of the retreating car and saw an eastbound car approaching him 75 to 100 feet away, proceeding at a rate of speed of thirty miles per hour. The motorman of the last-mentioned car was the person who had shouted to plaintiff. When plaintiff saw the eastbound car approaching him at such a terrific rate of speed he became confused by the impending danger. He first thought that he would return and cross the westbound track but remembering that he had seen a car approaching from the east on that track he thought he had better not take any chances and made up his mind to proceed onward across the eastbound track, but before he could do so, the eastbound car was upon him. He jumped "right straight up" just before the car struck him.
The evidence shows that no signal of any kind was given by the motorman of the eastbound car except the shouting above mentioned. It also shows that the motorman did nothing whatever to stop or slacken the car until after he struck plaintiff, and that he stopped the car within sixty (60) or sixty-five (65) feet after striking him.
As before stated, the evidence shows that the distance from Bales Avenue to Benton Boulevard was two blocks, Indiana Avenue being the street between. The distance from Benton Boulevard to Indiana Avenue is six hundred and forty (640) feet from Indiana to Bales Avenue four hundred and ninety-four (494) feet. There was a drop of .78 per cent. in the grade of the street toward the east from Benton Boulevard to Indiana Avenue and from Indiana Avenue to Bales Avenue of 3.03 per cent. The motorman testified in effect that he saw plaintiff two hundred and forty-seven (247) feet before he struck him but that he did not check his speed when he first saw him and that he did nothing toward stopping the car until he got about thirty (30) feet from him. As before stated, plaintiff was on the westbound track when he looked around the corner of the car from which he had alighted and could see only one hundred feet west. From this we must assume that when the motorman, 247 feet west of plaintiff, saw him, plaintiff must have been approaching the eastbound track.
The case was submitted to the jury upon two theories; the first being upon that of excessive speed, plaintiff pleading and proving an ordinance of Kansas City providing that, "and all cars shall be run at all times and places at a reasonable rate of speed under the particular circumstances." This was the ordinance granting defendant's predecessors their franchise. The second theory upon which the case was submitted was the "humanitarian" or "last chance" doctrine.
We will take up the excessive speed theory first. Defendant contends that plaintiff: was guilty of contributory negligence as a matter of law in not looking again for east bound cars after he looked and could see only one hundred feet west. Whether or not plaintiff was guilty of contributory negligence in not again looking would depend entirely on the circumstances. In looking for eastbound cars he was only required to use ordinary care to see a car approaching and in...
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