Gabriel v. Metropolitan Street Railway Co.
| Citation | 109 S.W. 1042,130 Mo.App. 651 |
| Parties | SADIE GABRIEL, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Decision Date | 06 April 1908 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas H. Reynolds, Special Judge.
REVERSED.
Cause reversed.
John H Lucas and Halbert H. McCluer for appellant.
(1) The petition did not state facts sufficient to constitute a cause of action. Raming v. Railroad, 157 Mo. 508; McKee v. Cottle, 6 Mo.App. 417; Sherman v Rockwood, 26 Mo.App. 407; England v. Denham, 93 Mo.App. 19; Adams v. Trigg, 37 Mo. 141; Darrett v. Donnelly, 38 Mo. 494; Haley v. Railroad, 197 Mo. 13-25; Grant v. Railroad, 102 S.W. 1029. (2) The court erred in overruling defendant's objections to the introduction of any testimony. Authorities under Point 1. (3) The court erred in not giving defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case, and again at the conclusion of all the evidence. Authorities under point 1 and also the following: Reno v. Railroad, 180 Mo. 486; Van Bach v. Railroad, 171 Mo. 338; Kellny v Railroad, 101 Mo. 75; Markowitz v. Railroad, 186 Mo. 350; Boring v. Railroad, 194 Mo. 541; Eppstein v. Railroad, 197 Mo. 733; Boyd v Railroad, 105 Mo. 371; Schmidt v. Railroad, 160 Mo. 52; Percell v. Railroad, 103 S.W. 1038; Hogan v. Railroad, 150 Mo. 54; Lloyd v. Railroad, 128 Mo. 601.
Meservey & German for respondent.
(1) The petition is not subject to the objection that it does not state facts sufficient to constitute a cause of action. Welch v. Mastin, 98 Mo.App. 273; Jones v. Railroad, 178 Mo. 528; Hyatt v. Legal P. Assoc., 106 Mo.App. 610; Childs v. Railroad, 117 Mo. 414; Haley v. Railroad, 197 Mo. 25; Seiter v. Bischoff, 63 Mo.App. 157; Oglesby v. Railroad, 150 Mo. 155. (2) The instructions in the nature of a demurrer to the evidence at the conclusion of plaintiff's case and against at the conclusion of all the evidence were properly refused. Meeker v. Railroad, 178 Mo. 173; Livingston v. Railroad, 170 Mo. 452; Butler v. Railroad, 117 Mo.App. 354; Gunn v. Railroad, 26 S.E. 546; Winters v. Railroad, 99 Mo. 509; Gruebel v. Railroad, 108 Mo.App. 548; Mullin v. Transit Co., 196 Mo. 572.
--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, Missouri.
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 employees 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 a 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 prior thereto running the car at a rate of speed in excess of that permitted by ordinance.
At the trial defendant objected to the introduction of any evidence on the ground that the petition did not state a cause of action. The objection was overruled. The parties respectively introduced evidence, and the cause was submitted to the jury which returned a verdict for plaintiff in the sum of $ 3,500 upon which judgment was rendered and defendant appealed.
The first question raised is as to the sufficiency of the petition. The defect assigned is that it is inconsistent with itself. One of the allegations is, as we have seen, that the agents of defendant 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 defendant's agent in charge of the car, 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. The other allegation referred to is that, wherein the defendant's agents ran the car at such a high rate of speed, that the control of the car was lost and it was beyond the power of the brakes with which it was equipped to stop the same in time to have avoided the injury after they knew that the child was upon the track or by the exercise of ordinary care might have known that she was on the track.
The two allegations are inconsistent and both could not be true. In Raming v. Railroad, 157 Mo. 495, the court in speaking of a similar case said: There are numerous cases of similar import. [Sherman v. Rockwood, 26 Mo.App. 403; McKee v. Cottle, 6 Mo.App. 416; England v. Denham, 93 Mo.App. 13; Adams v. Trigg, 37 Mo. 141.]
And if the rate of speed was so great as to have rendered it impossible for the motorman to stop the car or slacken its speed by the exercise of ordinary care the defendant was not liable under the humanitarian rule. [Haley v Railroad, 197 Mo. 15.] The cause was submitted to the jury alone on the theory of the humanitarian rule, although much evidence was introduced on the part of the plaintiff to the effect that the car was operated at a rapid rate of speed, the tendency of which was to show that the motorman did not see and could not have seen the peril of the child in time, by the exercise of ordinary diligence to have saved her from...
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