Dunn v. Kansas City Rys. Co.
| Decision Date | 10 June 1918 |
| Docket Number | No. 12927.,12927. |
| Citation | 204 S.W. 592 |
| Parties | DUNN v. KANSAS CITY RYS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.
"Not to be officially published."
Action by Marian Agnes Dunn, by next friend, Mary A. Dunn, against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.
Clyde Taylor, of Kansas City, for appellant. Brewster, Kelly, Brewster & Buchholz, of Kansas City, for respondent.
About 10 p. m. of the evening of June 18, 1915, plaintiff was crossing Woodland avenue, near the intersection of Thirty-Eighth street with said avenue, in Kansas City, Mo. She proceeded from the west toward the east over defendant's double car tracks running north and south on Woodland avenue. When plaintiff reached the first or south-bound track, she stopped in the middle thereof to permit a north-bound car on the other track to pass before proceeding on across to the east side of the street. She stood in this place from 30 seconds to a minute, in a position so that she could not see an on-coming south-bound car. A southbound car, without any warning of any kind, struck and injured plaintiff while she was standing in said position. The evidence shows that the motorman's view was unobstructed for fully a block, and that he had ample time in which to have stopped the car and avoided the injury. Plaintiff brought this suit for such injuries and, having recovered, defendant has appealed.
Plaintiff submitted the case to the jury on the "humanitarian" or "last chance" doctrine; plaintiff's instruction No. 1 providing that she might recover, although she were guilty of negligence in going upon the track under the circumstances. Defendant's first point is that its demurrer to the evidence should have been sustained. In this connection defendant says that the petition fails to state a case under the "humanitarian" theory. Plaintiff claims that the following allegation in the petition, following a recital of the circumstances of the accident, states a case under that theory:
"* * * That the defendants, their agents, servants, and employés operating said car at said time saw, or by the exercise of ordinary care on their part could have seen, plaintiff walking across and upon said tracks and crossing said tracks, and on said tracks and in a place of danger, in time, by the exercise of ordinary care, to have warned plaintiff of the approach of said car, and in time, by the exercise of ordinary care, to have stopped said car before it struck plaintiff, and thus could have avoided injuring plaintiff as hereinafter set forth."
In addition to this allegation of negligence the petition charges that defendant's agents in charge of said car negligently failed to give her any warning of the approach of the car; that defendant's said agents negligently failed to keep a vigilant watch to see if persons were moving toward, upon, near, or crossing said tracks; that defendant's said agents negligently operated the car at a high and excessive speed; that said agents negligently operated the car at a greater rate of speed than 12 miles per hour, and negligently failed to stop the car before striking plaintiff, but negligently continued to run the car at a high, excessive, dangerous, and unlawful rate of speed. This last charge is followed by these words:
"That because of all of said careless and negligent acts of the defendants, their servants, agents, and employés aforesaid, said car ran into and struck plaintiff with great force and violence, by reason whereof plaintiff was greatly injured and hurt."
It is claimed by the defendant that the gist of the charge of negligence is not "last chance" negligence, but ordinary negligence, in negligently continuing to operate the car at an excessive, unlawful, and dangerous rate of speed without stopping it (citing the cases of Grout v. Electric Railway Co., 125 Mo. App. 552, 102 S. W. 1026; Guffey v. Harvey, 179 S. W. 729). We do not think that this petition is in any way similar to the petitions in the Guffey and Grout Cases. The acts of negligence charged in the petition in the case at bar are stated separately and distinctly. There is no question but that plaintiff had a right to plead in one count all of the negligent acts relied on, whether "last chance" or "ordinary." "Last chance" negligence may be alleged in the same count along with other acts of negligence. Fleming v. Railroad, 263 Mo. loc. cit. 188, 172 S. W. 355; De Rousse v. West, 200 S. W. loc. cit. 786.
Defendant urges that that part of the petition first quoted above fails to state a case under the "last chance" or "humanitarian" doctrine, for the reason that it fails to state that defendant's servants, after they saw, or by the exercise of ordinary...
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