Gabriel v. Metropolitan St. Ry. Co.

• Decision Date: 06 April 1908
• Citation: 109 S.W. 1042,130 Mo. App. 651
• Parties: GABRIEL v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

109 S.W. 1042

130 Mo. App. 651

GABRIEL v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

April 6, 1908.

Rehearing Denied May 4, 1908.

1. PLEADING—ALLEGATIONS—INCONSISTENCY.

In an action for the death of a six year old child struck by defendant's electric car, an allegation of the petition that defendant's agents in charge of the car by the exercise of ordinary care might have seen the child in time to have prevented its death, and that the child's position on or near the track in a place of danger was known to such agents, or could by the exercise of ordinary care have been known to them, in time to have stopped the car or slackened its speed, and to have notified the child in time to have avoided its injury, is inconsistent with another allegation that defendant's agents ran the car at such a high rate of speed that its control was lost, and it was beyond the power of the brakes to stop the car in time to have avoided the injury after they knew the child was upon the track, or by the exercise of ordinary care might have known that she was on the track; it being impossible for both allegations to be true.

2. STREET RAILROADS—PERSONS ON TRACK— INJURY—INSTRUCTIONS.

In an action for the death of a six year old child struck by defendant's electric car, where there was considerable evidence for plaintiff that the car was operated at a high speed, and that the motorman did not see, and could not have seen, the peril of the child in time, by the exercise of ordinary care, to have saved her from injury, it was erroneous to submit the cause to the jury alone on the theory of the humanitarian rule, because, if the speed was so great as to have rendered it impossible for a motorman to stop the car or slacken its speed by the exercise of ordinary care, defendant was not liable under such rule.

3. SAME—PRESUMPTIONS.

The mere fact that a person is on the street with the evident purpose of crossing it while a car is approaching is no evidence in itself that he intends to place himself in a position of peril.

4. SAME—SUFFICIENCY OF EVIDENCE.

In an action for the death of a six year old child struck by defendant's electric car, evidence examined, and held not to show that the motorman in charge of the car was guilty of negligence after he discovered, or should have discovered, the child's peril in time to have avoided the danger, but to show, rather, that he was not guilty of any dereliction of duty whatever.

Appeal from Circuit Court, Jackson County; Thomas H. Reynolds, Special Judge.

Action by Sadie Gabriel against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John H. Lucas and Halbert H. McCluer, for appellant. Meservey, Pierce & German, for respondent.

BROADDUS, P. J.

The plaintiff, as the surviving parent, brings this suit to recover for the death of her infant daughter, six years of age, who was killed on the 14th day of August, 1906, by being run against by one of defendant's electric cars going east on Fifth street, near its intersection with Cherry street, in Kansas City, Mo. The petition alleges that the death of the child was caused directly by the negligence of defendant in conducting and operating its car while she was with due care walking along said street in full view of the servants and agents of defendant. The specific grounds of negligence are substantially as follows: That defendant failed to ring its bell so as to notify the child of its danger, on account of the approaching car; that defendant's employés did not stop the car or lessen its speed, although by the exercise of ordinary care they might have seen the child in time to have done so and prevented the injury; that the position of the child on or near the track of defendant in place of danger was known to the defendant's agents in charge of the car, or could by the exercise of ordinary care and diligence have been known to them, in time to have stopped the car or slackened its speed and to have notified the child in time to have avoided striking her; that the agents and servants of defendant negligently ran said car so rapidly and at such a high rate of speed, * * * so that the control of said car was lost, and it was beyond the power of the brakes with which said car was equipped to stop the same, in time to avoid the injury heretofore alleged, after said agents of defendant knew that the child was upon the track, or so close thereto as to be struck by the car, or by the exercise of ordinary care might have known that plaintiff's child was upon said track, or so close thereto as to be struck by the car; that defendant's agents in charge of the car failed and neglected to keep a proper lookout for persons upon or close to said track as said car was run by them on the street; and that defendant's agents were at the time of the injury, or immediately...