Ellis v. Metropolitan St. Ry. Co.

• Decision Date: 01 June 1911
• Parties: GEORGE W. ELLIS and ELIZABETH ELLIS v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

138 S.W. 23

234 Mo. 657

GEORGE W. ELLIS and ELIZABETH ELLIS v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

June 1, 1911

Appeal from Jackson Circuit Court. -- Hon. Henry L. McCune, Judge.

Affirmed.

John H Lucas for appellant.

(1) The court erred in refusing to give defendant's demurrer offered at the close of plaintiffs' evidence and renewed at the conclusion of all the evidence. Reis v. Transit Co., 179 Mo. 7; Holland v. Railroad, 210 Mo 350; Degonia v. Railroad, 224 Mo. 599; Boring v Railroad, 194 Mo. 552; Guyer v. Railroad, 174 Mo. 344; Roenfeldt v. Railroad, 180 Mo. 565; Van Bach v. Railroad, 171 Mo. 346; Sikes v. Knott, 197 Mo. 714; Hawkins v. Railroad, 135 Mo.App. 535; King v. Wabash, 211 Mo. 14. (2) The court erred in giving instruction for respondents. King v. Wabash, 211 Mo. 114; Matz v. Railroad, 217 Mo. 300; Degonia v. Railroad, 224 Mo. 587; Ross v. Railroad, 132 Mo.App. 479; Wallack v. Transit Co., 123 Mo.App. 167; Graffe v. Transit Co., 224 Mo. 261; Crowe v. Railroad, 212 Mo. 610; Swearingen v. Railroad, 221 Mo.App. 660; Percell v. Railroad, 126 Mo.App. 53; Budd v. Hoffheimer, 52 Mo. 297; Houck v. Railroad, 116 Mo.App. 559; Heinzle v. Railroad, 182 Mo. 559. (3) The court erred in refusing to give instructions for appellant. Veatch v. Railroad, 129 S.W. 404; Felver v. Railroad, 216 Mo. 210; Weigman v. Railroad, 223 Mo. 713; Stottler v. Railroad, 204 Mo. 619; Brockschmidt v. Railroad, 205 Mo. 435; Houck v. Railroad, 116 Mo.App. 559; Heinzle v. Railroad, 182 Mo. 559. (4) The counsel for respondents being guilty of misconduct, the court erred in refusing to reprimand and in refusing to give instruction 18 asked by appellant. Eppstein v. Railroad, 197 Mo. 738; Haynes v. Trenton, 108 Mo. 133.

T. J. Madden for respondents.

(1) That the demurrer to the evidence should not have been sustained. White v. Railroad, 202 Mo. 539; Waddell v. Railroad, 213 Mo. 8, is very much in point. Felver v. Railroad, 216 Mo. 195; Dahmer v. Railroad, 136 Mo.App. 443; Eckhard v. Transit Co., 190 Mo. 593; Grout v. Railroad, 125 Mo.App. 552; Cole v. Railroad, 121 Mo.App. 605; Beier v. Transit Co., 197 Mo. 125; Schafstette v. Railroad, 175 Mo. 142; McKenzie v. Railroad, 216 Mo. 1; Moore v. Transit Co., 194 Mo. 1; Kinlen v. Railroad, 216 Mo. 145; Murry v. Transit Co., 108 Mo.App. 510; Eckhard v. Transit Co., 190 Mo. 593; Barrie v. Transit Co., 119 Mo.App. 38; Holmes v. Railroad, 207 Mo. 149; Holden v. Railroad, 177 Mo. 469; Goff v. Transit Co., 199 Mo. 694; Beier v. Transit Co., 197 Mo. 215; O'Keefe v. Railroad, 124 Mo.App. 613; Wise v. Transit Co., 198 Mo. 546; Richmund v. Railroad, 123 Mo.App. 495. (2) The use of the plural "tracks" could not have misled the jury, for it is qualified so as to limit the situation of peril to the "danger of being struck by said car." The use of the plural "tracks" was proper because the horse and wagon were on both tracks at a time when the boy was in a situation of peril. It is also objected that the instruction assumes that the boy was not aware of the approach of the car. No such assumption is made in the instruction. But even if it did assume that he was unaware of the approach of the car it would not be error. All the evidence, without a single exception, showed that he was unaware of the car's approach. This instruction is identical with those given in the leading cases. Waddell v. Railroad, 213 Mo. 8; Matz v. Railroad, 217 Mo. 275; Kinlen v. Railroad, 216 Mo. 145; Felver v. Railroad, 216 Mo. 195. (3) Instruction two was supplemental to and explanatory of instruction one. The jury might have received the impression from instruction one standing alone that the motorman was under no duty to take precaution to avoid the collision until the boy was actually upon the track, which of course, is not the law, and plaintiffs were entitled to a proper statement of the motorman's duty. It was his duty to take precaution to avoid the injury after it became apparent that deceased was going upon the track. Barrie v. Transit Co., 119 Mo.App. 52; Murray v. Transit Co., 108 Mo.App. 510; Eckhard v. Transit Co., 190 Mo. 617; Holden v. Railroad, 177 Mo. 469. (4) The ringing of the bell was one of the means that the motorman could have used to avert the collision. Proper warning would have prevented his entry upon the track or hastened his leaving it. It has been held that the failure to sound the bell may make the defendant liable under the humanitarian doctrine. Klockenbrink v. Railroad, 172 Mo. 690; Moore v. Transit Co., 194 Mo. 11; Reyburn v. Railroad, 187 Mo. 572; Riska v. Railroad, 180 Mo. 184; Mann v. Railroad, 123 Mo.App. 486; Kinlen v. Railroad, 216 Mo. 145; Waddell v. Railroad, 213 Mo. 8; Kinlen v. Railroad, 216 Mo. 145; Felver v. Railroad, 216 Mo. 195.

OPINION

LAMM, J.

Plaintiffs sue defendant for the statutory penalty of $ 10,000, for the death of their minor son, Carl, grounding their action on negligence. A verdict came in for $ 8000, and from a judgment on that verdict defendant appeals, assigning error as follows:

(a). In refusing defendant's demurrer at the close of plaintiff's case and again at the close of the whole case.

(b). In giving plaintiff's instructions 1 and 2.

(c). In refusing instruction 7, 9 and 12 for defendant.

(d). In ruling on the admission of testimony.

(e). In ruling on the language and conduct of plaintiff's counsel in his concluding argument to the jury.

(f). In overruling the motion for a new trial (and herein that the verdict is excessive and indicates passion and prejudice).

Any record needful to make plain and determine assignments b, c, d, e, and f will appear when considering them in the course of the opinion.

As to assignment a it calls for a summary of the pleadings and facts, viz.:

Of the pleadings.

The petition charges that defendant is a corporation owning and operating a street railway system in Kansas City, including a line on East Fifteenth street, run by electricity, each car manned by a motorman and conductor; that said street was a public street; that defendant owed certain duties to keep from injuring persons using the street; that Carl Ellis was unmarried, the child of plaintiffs (who are husband and wife), aged about fifteen years; that while Carl, at about ten o'clock a. m. of September 5, 1906, was driving a delivery wagon eastwardly on said street where it intersects Bristol avenue, his wagon was run into by one of defendant's cars and he was killed by the negligence of defendant's servants and employees, viz., in not keeping the car under proper control, in not keeping a proper outlook for persons in a position of danger, in not giving proper warning to the deceased of the approach of the car and in not making proper effort to stop the car or reduce its speed as it approached the deceased. The petition next states a ground of recovery under the humanitarian rule in that defendant, its agents, and servants, failed to exercise ordinary care in the use of the means at command to avoid injuring the boy after they either discovered him in peril or by the exercise of ordinary care should have discovered him in or going into a situation of peril.

The answer was a general denial, coupled with a plea of the contributory negligence of deceased.

No reply is shown by the record, but the trial proceeded as though one had been filed.

Of the facts.

Fifteenth street runs east and west in Kansas City. Bristol avenue runs north and south, stopping at Fifteenth. Winchester runs north and south, and cuts Fifteenth street at right angles a block (300 feet) west of Bristol. The place of the accident was the intersection of Bristol and Fifteenth if the former had been projected further. We will call it the "intersection." Up to the time in hand, Fifteenth street had not been paved from curb to curb. On that street two street railway tracks were laid, on which defendant operated street cars by electricity. The eastern termini of these lines were a few blocks east from said intersection. At and some little while before the accident a scheme for partially paving 15th was being carried on. As we grasp it, that scheme was to pave the tracks and between the tracks with a margin on either side with brick. In order to do that, excavation was necessary, and the dirt taken out, thrown to either side of the tracks, somewhat interfered with travel. Bricks had been laid and heeled into the sand from the east up to Bristol. From Bristol on west the pavement was not so far advanced, but was in progress. The excavation continued on west and gangs of men were at work at intervals in the street from Bristol west to Winchester and beyond. Half bats and quarter bats were to be fitted into the interstices of the pavement, and then it was to be rolled and cement slush poured on to complete it. In the condition of things existing on September 5, 1906, it was not practical for teams and wagons to cross from one side of Fifteenth to the other in the neighborhood of the accident for several blocks, except at one point, namely, at said intersection. There loose bricks had been roughly laid, making a street crossing diagonally over the tracks -- said crossing running from the northwest to the southeast. That crossing had been put in some two or three days before the accident and, as said, was the only available one.

Plaintiff George W. Ellis, kept a transfer barn on the south side of Fifteenth street, about a half block east of said intersection. He owned and operated therefrom express wagons, and one of those wagons was in charge of his son Carl. Carl Ellis was about fifteen years old and had for about a year worked for his father, after school hours and during the summer school vacation, in driving an express wagon and delivering...