Duffy v. Kansas City Rys. Co.

• Decision Date: 05 January 1920
• Docket Number: No. 13432.,13432.
• Citation: 217 S.W. 883
• Parties: DUFFY v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

217 S.W. 883

DUFFY v. KANSAS CITY RYS. CO.

No. 13432.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

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

"Not to be officially published."

Action by Edward J. Duffy against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and Roscoe P. Conkling and B. E. Ball, both of Kansas City, Mo., for appellant.

Kimbrell & O'Donnell, of Kansas City, Mo., for respondent.

BLAND, J.

Plaintiff, while riding upon a motor fire apparatus called a hose truck, was thrown from the same and injured by reason of one of defendant's street cars running into it. He recovered a verdict and judgment in the sum of $5,000, and defendant has appealed.

Defendant had a double-track street car line running east and west on Fifteenth street, in Kansas City, Mo. The fire station from Which the truck started was located at Sixteenth and Locust streets. Plaintiff was seated on the truck going to a fire located on Oak street, between Eleventh and Twelfth streets. In answering calls for fire in the vicinity of this fire it was customary for the fire apparatus to proceed north to Fifteenth street, thence west thereon for one block to Oak street, thence north on Oak street. The truck was 12 feet in width, 20 feet in length, and weighed 5 tons. It was about 4½ feet from the ground to its highest part. The truck was painted a bright red. It had three lights in front, including a large headlight raised in front of the driver about 12 to 14 inches, which threw a light for 100 feet in front of the truck. The truck was equipped with a bell 16 inches in diameter and a siren horn which made a screeching or screaming noise that could be heard for miles except in the downtown district, where it could be heard for 4 or 5 blocks. Plaintiff was operating both of these signal devices from the time the truck left the station to the time of the collision. The truck proceeded north on the east side of Locust street in second speed and at the rate of 8 to 10 miles per hour. Plaintiff, who was a captain in the city's fire department, sat on the front seat to the left, or west, of the driver. When plaintiff, seated on the truck, reached a position where he could see west on Fifteenth street, which was about 50 feet from the south rail of defendant's car tracks on Fifteenth street, he looked west and saw an east-bound car about 150 feet west of the west property line of Locust street. Plaintiff at the time judged the street car to be coming at the rate of 10 to 12 miles per hour, when in fact it was running at the rate of from 20 to 25 miles per hour.

Plaintiff told the driver to proceed, whereupon the latter made a wide swing around to the right curb of Locust street, about 30 feet south of the car tracks, in order to turn west on the north side of Fifteenth street, and when the truck had almost cleared the south track on the west side of Locust street the car struck the rear end thereof, knocking and lifting the truck clear of the track and 18 to 20 feet to the north, and running a half block before stopping. It did not slacken its speed before striking the truck. The collision caused plaintiff to be knocked from his seat and thrown against the iron dashboard of the truck and over the fender and hood of the truck to the ground, severely injuring him. The truck was badly damaged.

Plaintiff pleaded and introduced in evidence an ordinance fixing the lawful rate of speed for street cars at the place in question at 12 miles per hour; also city ordinances giving fire apparatus paramount right of way over the streets of the city in going to a fire, and also made it the duty of all employ& in charge of street cars to stop the car when any fire wagon approaches until it has passed by. There was evidence that the street car employs usually obeyed the latter ordinance, but there is some evidence that they did not always obey the speed ordinance. But plaintiff testified that he relied upon the street car obeying both the fire and street ordinances; "that I never thought they was coming down there at the rate of speed they were. * * * I did not realize the rate of speed until after they hit us." He also testified that the car was making more than the usual speed that street cars usually made when they passed Oak and Locust streets without stopping.

Defendant's first point is that its demurrer to the evidence should have been sustained. In this connection defendant says that plaintiff did not make out a case on any theory; that there was no case made under the excessive speed ordinance, for the reason that plaintiff, as defendant says, was guilty of contributory negligence, in that he knew the rate of speed at which the car was running, and that it was violating the ordinance, and he had no right to rely upon its obedience to the ordinance; that he knew the car was running at the usual rate of speed, which was more than ordinance speed; that plaintiff was directing the movement of the truck and should have had the driver stop instead of proceeding across the tracks; that there was evidence that under the circumstances the truck could have been stopped in 10 feet; that under all the circumstances plaintiff knew a collision would be inevitable. This contention is based partly on a misconception of the evidence and partly on a misconception of the law. As already stated, there is evidence that the street cars usually obeyed the fire ordinances; that plaintiff expected this one to do so; that the street car was being operated at a faster rate than its usual speed; and that plaintiff did not realize the speed was as great as it was. Firemen going to a fire are given the right of way over street cars not only by ordinance but by common law as a matter of necessity. They are not to be regarded in the same light as pedestrians, drivers of vehicles, and street car motormen, as none of these has a superior right over the other. Michael v. K. C. Western Ry. Co., 161 Mo. App. 63, 143 S. W. 67; Green v. United Railways Co., 165 Mo. App. 14, 145 S. W. 861; Taylor v. St. Ry. Co., 166 Mo. App. 131, 148 S. W. 470.

A call to a fire on the part of public servants operating the fire-fighting apparatus of the municipality is of such importance and urgency as to brook no delay. The care required of them is not to be compared in any respect to that required of other ordinary persons. It is true that they must observe the care that an ordinarily careful and prudent person in the same situation would observe, and that they are not permitted to continue into a situation that is bound to result in a collision when by the use of ordinary care they can stop their apparatus and avoid the accident. Unless all the evidence would show beyond question that the collision was inevitable, and that they could have foreseen and realized the situation and could have taken measures to avoid the collision, we think that the court could not say as a matter of law that they were guilty of contributory negligence. When the truck reached a position where the motorman could have seen it, the street car was 150 feet away from the point of collision. Defendant's evidence shows that going at the rate of 20 or 25 miles per hour at the time and place of the collision the street car could have been stopped in 100 feet. So it would make no difference if plaintiff were blamed for his lack of judgment in measuring the speed of the car at 10 to 12 miles per hour instead of 20 to 25 miles per hour, for even at the speed it was coming the motorman had plenty of time to stop.

We do not think that plaintiff should be judged guilty of contributory negligence as a matter of law because he misjudged the speed of the car. He was observing the car from a straight line or an acute angle. He had a right to presume that the motorman had heard the siren on the approaching fire apparatus for a block or more and had his car under such control (if it were moving at all) that there was no question but that he could immediately stop it upon the appearance of the fire apparatus. The exigencies necessarily required plaintiff to proceed at a high rate of speed. He was intent on reaching the fire. His first consideration was this and for the safety of himself and others riding upon the fire apparatus. He could rely upon defendant's servants obeying all of the ordinances as far as danger to himself and his companions from the approaching street car was concerned. Under the circumstances we certainly could not say that he was guilty of negligence as a matter of law in misjudging the speed of the car. Strauchon v. Met., 232 Mo. 587, 135 S. W. 14; Michael v. K. C. Western Ry., supra; Green v. Railroad, supra; Taylor v. Railway, supra.

Defendant complains of the giving of plaintiff's instruction No. 1. This instruction is predicated upon the fire ordinances, and told the jury that if plaintiff was on the truck proceeding in answer to an alarm of fire and that defendant's servants in charge of the car knew, or by the exercise of ordinary care might have known, that the truck was approaching upon said railway track in answer to an alarm of fire, and if defendant's servants by the exercise of ordinary care and by the use of the means at hand could have stopped the car and avoided the collision, but negligently failed to do so and as a result thereof plaintiff was injured, plaintiff being in the exercise of ordinary care for his own safety, their verdict should be for the plaintiff. Defendant urges that there is no humanitarian case pleaded, nor any allegation of negligence in the failure to stop the car. The petition alleged the fire ordinances and in connection therewith likewise alleged that "defendant's servants disregarded the ordinance and failed to bring the car to a stop." The instruction is intended to cover this allegation, and while it does not have the jury find there were in fact any such...