Farrar v. Metropolitan St. Ry. Co.

• Decision Date: 28 March 1913
• Citation: 249 Mo. 210,155 S.W. 439
• Parties: FARRAR v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

155 S.W. 439

249 Mo. 210

FARRAR v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri. Division No. 1.

March 28, 1913.

1. PLEADING (§ 21) — STREET RAILROADS — COLLISIONS — INCONSISTENT ALLEGATIONS.

A petition, in an action for injuries in a collision with a street car, which alleges that the car was operated at a speed in excess of the ordinance limit, and that the motorman discovered, or ought to have discovered, plaintiff's peril in time to have avoided injury to her, does not contain inconsistent allegations, but the jury must determine which act of negligence was the proximate cause of the injury.

2. EVIDENCE (§ 571) — EXPERT TESTIMONY — SPEED OF CAR — SUFFICIENCY.

The testimony of persons experienced in timing moving trains, automobiles, boats, and other vehicles that a street car was running 25 to 30 miles per hour supports a finding that the car was operated in excess of 20 miles an hour, notwithstanding contradictory testimony.

3. STREET RAILROADS (§ 114) — COLLISIONS — PROXIMATE CAUSE — EVIDENCE.

In an action for injuries in a collision with a street car, evidence held to support a finding that the excessive speed of the car was the proximate cause of the accident.

4. STREET RAILROADS (§ 114) — COLLISIONS — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

In an action for injuries in a collision with a street car, evidence held to support a finding of the driver's freedom from contributory negligence.

5. NEGLIGENCE (§ 93) — IMPUTED NEGLIGENCE — DRIVER OF VEHICLE.

The negligence of an employé while driving a vehicle obtained by third persons from the employer is not imputable to the third persons, who only directed the employé to drive to a particular place.

6. STREET RAILROADS (§ 117) — COLLISIONS — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Whether a person seated on the side of a vehicle along a street railroad track was guilty of contributory negligence precluding a recovery for injuries in a collision with a street car held, under the evidence, for the jury.

7. STREET RAILROADS (§ 117) — NEGLIGENCE — LAST CLEAR CHANCE — EVIDENCE — SUFFICIENCY.

Where, in an action for injuries in a collision with a street car, the motorman testified that after the collision he stopped the car in from seven to ten feet, and another witness testified that the car stopped almost immediately, and there was evidence that the vehicle struck by the car was driven parallel to the track, and so near that its corner was struck by the projecting shoulder of the body of the car, the question of last clear chance on the part of the motorman to avoid the collision was properly submitted to the jury, under the rule that, where there is evidence of any kind sufficient to support a finding that the car could have stopped in time to avert injury after the danger was or ought to have been discovered, the doctrine of last clear chance must be applied.

8. STREET RAILROADS (§ 90) — COLLISIONS — EVIDENCE — INSTRUCTIONS.

Where, in an action for injuries in a collision with a street car, the evidence showed that the car was operated at an excessive speed, and that the vehicle, driven parallel to the track was struck by the projecting shoulder of the body of the car, and the court charged that if the driver caused the collision by pulling his team away from the track after the vestibule of the car passed the rear of the wagon there could be no recovery, without regard to

the speed of the car, and the verdict must be for it if the collision was the result of accident, or any other reason except the negligence of the motorman, an instruction that if the motorman was running the car not over 20 miles per hour, and saw the vehicle on the side of the track, out of range, and in no danger of being struck, he could assume that the vehicle would remain out of range, and he need not slacken the speed until, by exercise of ordinary care, it became apparent to him that there was danger of collision, and if he used ordinary care to prevent a collision he was not guilty of any negligence, was not erroneous.

9. WITNESSES (§ 393) — IMPEACHMENT — EVIDENCE — ADMISSIBILITY.

Where a foundation was laid for impeaching a witness by proving contradictory statements made in a deposition taken by a stenographer and corrected, but not signed, by the witness, the transcript made by the stenographer and shown by his testimony to be correct was admissible to impeach the witness.

10. TRIAL (§ 29) — REMARKS OF TRIAL JUDGE.

The remarks of the trial judge that a witness must not testify by conjecture or conclusion, and that "the witness says he knows, but the court rules he does not know," are not ground for reversal, where the witness subsequently made it clear that he did not know in the sense that he saw what he attempted to testify to as within his knowledge.

11. EVIDENCE (§ 548) — OPINION EVIDENCE.

A driver of a vehicle struck by a street car, who did not see the effect the turning of his team had on the rear of the wagon, may give his opinion on the effect of his turning the team; but he may not state as a fact the effect as a result of his reasoning in the light of his previous experience.

12. TRIAL (§ 29) — REMARKS OF PRESIDING JUDGE — MISCONDUCT.

Where the court stated that a witness must not testify by conjecture or conclusion, and that what the witness said he knew the court ruled he did not know, and counsel, after saving an exception, stated, "We save our exception to the remark of the court, ruling that the witness did not know, as violently invading the province of the jury, and ask the court to withdraw the remark from the jury," the remarks of the court that the ruling was correct, and that counsel was rebuked for making a prejudicial objection, and that counsel had his exception in the record, and that it would not have any defiance of its rulings, were not improper.

13. DAMAGES (§ 132) — PERSONAL INJURIES — EXCESSIVE DAMAGES.

Where a young, unmarried woman sustained a personal injury necessitating the amputation of her left leg 7½ inches below the knee, a verdict for $15,000 was excessive, and must be reduced to $10,000.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Jessie P. Farrar against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

John H. Lucas, of Kansas City, for appellant. J. Walter Farrar and White & Lyons, all of Kansas City, for respondent.

BLAIR, C.

This is an appeal from a judgment for $15,000 recovered by plaintiff in the circuit court of Jackson county, in an action for damages for injuries sustained on the evening of August 18, 1908, when one of defendant's cars collided with a wagon upon which plaintiff and 26 other young ladies were riding. The wagon was obtained from the Kansas City Carriage & Buggy Company, and was being driven by an employé of that company, to whom the only direction given was that he should drive to Swope Park. The wagon was proceeding southward along Troost avenue, and was approaching Forty-Sixth street, when it was struck by the car. The negligence alleged is the violation of a speed ordinance, failure to sound warning, and want of ordinary care after defendant discovered plaintiff's peril.

Some six or eight blocks north of Forty-Sixth street the car and trailer involved in the collision stopped that the crew might replace a fuse which had "blown out," and there the wagon upon which the plaintiff and her companions were riding passed them. Thence the wagon proceeded southward along the car line on Troost avenue, the wheels astride the west rail of the southbound track. The evidence tends to show this use of the track was necessitated by the presence in the avenue of débris due to street improvements then being made. The hour was about 9 p. m.; the night was not more than usually dark for the hour and season; the car was equipped with a headlight; and the street lights were burning at Forty-Fifth and Forty-Sixth and other cross streets. From the point where the car stopped, as stated, to the point of collision, the track is straight, and there is no physical obstruction of the view.

There is sharp conflict in the evidence as to the speed of the car. The ordinance fixed a limit of 20 miles per hour. There is evidence the car was running 25 or 30 miles an hour for several blocks before it struck the wagon, and that its speed was unchecked until the collision occurred. There is also evidence, offered by defendant, that the car stopped at Forty-Fifth street, and after starting again attained a speed not exceeding 15 miles per hour, which before the collision had been reduced to a rate variously estimated from 4 to 7 miles per hour. There is also conflict in the evidence as to the distance the car ran after striking the wagon. Some of the evidence tends to show the stop was made in a distance of 7 to 10 feet; one witness testified the stop was made almost instantaneously; and other testimony is that the car ran 50 feet or more. Defendant's motorman testified that after leaving Forty-Fifth street he saw the wagon 300 feet away, near Forty-Sixth street. There was evidence the driver of the wagon looked back and saw the approaching car 150 or 200 feet away, drove off the track, and then continued driving southwardly, gradually moving away from the west rail. The evidence conflicts on the question whether the wagon was "in the clear" as the car neared it. Plaintiff and her companions, constituting a church society, were indulging in what is called a "hay ride," and plaintiff was sitting near the center of the left-hand or east side of the wagon; her feet hanging over the side. She says when she first observed the car's approach the wagon platform, which protruded somewhat, was over the west rail, though the wheels were west of that rail; that the car was but a short distance away and coming so rapidly that she had no time to do more than to attempt to raise her feet when the car struck the wagon,...