Flynn v. Kansas City Rys. Co.

• Decision Date: 29 November 1920
• Docket Number: No. 13771.,13771.
• Parties: FLYNN v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

226 S.W. 974

FLYNN v. KANSAS CITY RYS. CO.

No. 13771.

Kansas City Court of Appeals. Missouri.

November 29, 1920.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

"Not to be officially published."

Action by James Flynn against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard J. Higgins, of Kansas City, Kan., A. A. Whitsitt, of Harrisonville, and Charles N. Sadler, of Kansas City, Mo., for appellant.

Watson, Gage & Ess, of Kansas City, Mo., for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,870, and defendant has appealed.

The facts show that plaintiff was injured on Sixteenth street near Wyoming street, in Kansas City, Mo. Sixteenth street runs east and west, and Wyoming north and south. Defendant maintained tracks running on both streets, but no track on Sixteenth street east of Wyoming. Twelfth street cars ran east on Sixteenth street, and turned north on Wyoming at the intersection of the two streets. Tenth street cars, which ran near plaintiff's home in Kansas City, Kan., ran east on Sixteenth street, and turned south on Wyoming at the intersection of the streets. The gas company was excavating along Sixteenth street south of defendant's tracks and north of the curb. This excavation was 4 feet in length, started at a point opposite the beginning of the switch, and ran backward toward the west. The excavation was 2 feet wide and from 4 to 6 feet in depth; it was about 3½ feet from the south curb of Sixteenth street and about 5 feet south of the south rail of the track. Dirt was piled between the track and the excavation to a height of 2 feet. There was enough space between the dirt and a car on the track for a person to walk.

Plaintiff, who was an old man 76 years of age, was injured in the late morning of June 25, 1918. He was standing on Sixteenth street waiting for a car, either a Tenth street car or a Twelfth street car, he did not remember which. A Twelfth street car had come east on Sixteenth street, and stopped a few feet west of the excavation to let off, and discharge passengers. Plaintiff was then standing on the sidewalk on the south side of Sixteenth street. He hurried out into the street around the east side of the excavation in order to get to the car. While plaintiff was crossing to the car track the car moved forward about 30 feet and stopped a second time. At that time plaintiff was in the street towards the front of the car; he attempted to walk toward the rear end, and had gotten between the car and the pile of dirt when the car started up, striking and knocking him into the excavation and on top of a man who was digging there, plaintiff's head striking a rock.

Just before the street car started up the second time the conductor opened the gates of the car and looked out in plaintiff's direction. The car was started without any Warning. The back end of the car which was making the curve to the north swung out far enough to strike plaintiff on the legs. The corner where the accident occurred was a dangerous one on account of the narrowness of the street there. Defendant's conductor testified:

"I always watch this corner to see that rear end of Car does not strike anything, and it is a short curve."

Another conductor testified that it was the duty of conductors to see that the street was clear before giving the motorman a signal to proceed around the curve, as there was danger of the rear end of the car striking persons or vehicles.

There are four specifications of negligence alleged in the petition. The fourth specification is:

"* * * That the agents, servants, and employés of defendant operating said car, when they saw, or by the exercise of reasonable care should have seen, plaintiff in a position of danger between said street car and said excavation in the street, between the rails on which said car was moving and the curbing of the said street, if said car was put in motion, and negligently and carelessly started said car, without any warning to plaintiff or without giving plaintiff any notice that they were about to start said car, and by reason thereof he was struck by the rear end of said car as aforesaid, and injured thereby, as herein set forth."

Defendant's first point is that its instruction in the nature of a demurrer to the evidence should have been given. In support of this contention it argues that plaintiff was the only eyewitness to the accident, and that his testimony contains statements that are so antagonistic that the whole is devoid of probative force. The evidence shows that plaintiff was an aged man, and not accustomed to being on the streets. He had been in the vicinity of the place of the accident only five times in many years. He testified that he had been there "several times, not a great many times. I always work at home. I am no hand to go uptown." His memory was not good. However, there is...