Gaedis v. Metropolitan St. Ry. Co.

• Decision Date: 06 February 1912
• Citation: 143 S.W. 565
• Parties: GAEDIS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

143 S.W. 565

GAEDIS v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

February 6, 1912.

1. PLEADING (§ 21) — INCONSISTENCY — EFFECT.

Where pleaded acts of negligence are so inconsistent that proof of one would disprove the existence of the others, the pleading on its face is bad and will not support a judgment.

2. PLEADING (§ 433)—CONSTRUCTIONS—RECONCILING ALLEGATIONS.

Under Rev. St. 1909, § 1831, providing that, in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice, the petition being attacked after verdict for the first time, as bad, for alleging inconsistent acts of negligence, the allegations will, if they may without violence to reason, be reconciled and harmonized.

3. PLEADING (§ 21)—INCONSISTENT CHARGES.

The charges of negligence, in the petition for collision of a street car with an infant, that those in charge of it negligently ran it at a dangerous rate of speed under the circumstances, that they did not give warning of the car's approach, that they saw or should have seen his peril in time to have stopped the car had they been in the exercise of reasonable care, and that they negligently failed to have the car under control, are not inconsistent; the context showing that by the last allegation it was not intended to charge that the car could not have been controlled by the motorman— was running wild—but that it was being run at a dangerous rate of speed under the circumstances.

Appeal from Circuit Court, Jackson County; J. E. Goodrich, Judge.

Action by Frank Gaedis, by next friend, August Gaedis, against the Metropolitan Street Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

John H. Lucas and H. H. McCluer, for appellant. H. J. Latshaw, for respondent.

JOHNSON, J.

This suit is prosecuted by August Gaedis, as next friend of his infant son, Frank Gaedis, to recover damages for personal injuries sustained by Frank in being struck by an electric street car operated by defendant on one of its lines of street railway in Kansas City, Kan. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $2,000, and, after unsuccessfully moving for a new trial and in arrest of judgment, defendant brought the case here by appeal.

The injury occurred in the afternoon of September 18, 1908, on North Fifth street in Kansas City, Kan., near the intersection of Elizabeth avenue. This street runs north and south, and going north from Elizabeth avenue is on a slight upward grade for several blocks. Defendant operates a double-track electric railway on Fifth street, and a southbound electric street car of the single truck type inflicted the injury in question. August Gaedis conducted a grocery store on the west side of Fifth street and with his family resided over the store. He had two children, Annie, who was between six and seven years old, and Frank, four years and ten months of age. The evidence of plaintiff tends to show that, a short time before the injury, these children went into the street and engaged in play on the west track on which south-bound cars were run. They played with sand dropped by passing cars and were on or near the east rail. While thus engaged, a car came from the north at a speed of 8 or 10 miles per hour, and ran by without slackening speed or sounding the bell. Both children failed to notice the car until it came very near. The little girl succeeded in jumping out of the way and escaped; but the boy was less fortunate, and was struck by the end of the fender as he was trying to escape and was thrown down. One of his hands was run over and so crushed that it became necessary to amputate all the fingers except one. The car ran a block before it was stopped.

The evidence of defendant tends to show that the children were not playing on the track; but, while the car was advancing at a speed not to exceed five miles per hour, they first attempted to cross the track in front of the car, and, being warned away, they stood on the east side of the track apparently in the clear while the car ran by. No one on the car knew that the child had been struck until the car stopped a block away, when, looking back, they discovered that something had happened. An expert witness introduced by plaintiff testified that the car could have been stopped in 30 or 40 feet if it had been running 8 miles per hour, and in 50 or 55 feet if its speed had been 10 miles. During the approach of the car the children were in the view of the motorman a distance of three or four blocks.

The evidence of plaintiff presents a clear case of negligence on the part of the motorman. The plaintiff was so young he could not have been guilty of contributory negligence, and the presence of him and his sister on the track, or in proximity to it, unattended by an older person, in itself, was a danger signal that should have put the motorman on his guard. Seeing them there absorbed in play, he should have reduced speed and brought the car under complete control, so that if necessary it could be stopped before reaching the place where they were playing.

Defendant does not contend that the facts disclosed by the plaintiff's evidence do not show that negligence of the motorman was the proximate cause of the injury, but does contend that its demurrer to the evidence should have been sustained because of vital defects in the petition. The specifications of negligence in the petition were as follows: "First. The servants and agents then and there in charge of said car carelessly and negligently failed and neglected to have said car under control at the time it struck plaintiff, and as it approached plaintiff at said time and place. Second. The servants and agents then and there in charge of said car carelessly and negligently ran said car at a dangerous rate of speed under all the circumstances, at the time and place said car struck plaintiff and as it approached plaintiff, as above set forth. Third. The servants and agents of defendant then and there in charge of said car carelessly and negligently failed and neglected to ring the gong of said car, or to otherwise warn plaintiff of the approach of said car, at said time and place, although said servants and agents of defendant knew, or by the exercise of ordinary care and caution could have known, that plaintiff was in a perilous, or approaching a position of peril, or attempting to get out of a position of peril, within reasonable time to thereafter have rung said gong or bell of said car, or to have otherwise warned plaintiff of the approach of said car, and to have thereby avoided striking and injuring plaintiff. Fourth. Said servants and agents of defendant then and there in charge of said car saw plaintiff, or by the exercise of ordinary care and caution could have seen plaintiff, in...