Gaedis v. Metropolitan Street Railway Company

• Citation: 143 S.W. 565,161 Mo.App. 225
• Parties: FRANK GAEDIS, by Next Friend, AUGUST GAEDIS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 05 February 1912
• Court: Court of Appeals of Kansas

143 S.W. 565

161 Mo.App. 225

FRANK GAEDIS, by Next Friend, AUGUST GAEDIS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 5, 1912

Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas and H. H. McCluer for appellant.

(1) The petition did not state facts sufficient to constitute a cause of action. Gabriel v. Railway, 130 Mo.App. 551; Raming v. Railway, 157 Mo. 508; Sherman v Rockwood, 26 Mo.App. 403; England v. Denham, 93 Mo.App. 13-19; Adams v. Trigg, 37 Mo. 141; Darrett v. Donnelly, 38 Mo. 492; Haley v Railroad, 197 Mo. 13; White v. Railroad, 202 Mo. 539; Jordon v. Transit Co., 202 Mo. 426. (2) The court erred in giving appellant's instruction in the nature of a demurrer to the evidence offered at the close of the plaintiff's evidence and again at the close of all the evidence. Grout v. Railway, 125 Mo.App. 552; Haley v. Railroad 197 Mo. 25; Rine v. Railway, 88 Mo. 400; Ross v. Railway, 112 S.W. 9. (3) The court erred in giving instruction marked P-1 1/2. Railway v. Trego, 101 S.W. 256; Railway v. McCorkle, 140 Ind. 613, 40 N.E. 62; Railway v. Jones, 33 Ind.App. 333, 71 N.E. 275.

Henry J. Latshaw for respondent.

(1) The petition states facts sufficient to constitute a cause of action and the allegations of negligence are not inconsistent. Heinzle v. Railway, 213 Mo. 102; Nipper v. Railway, 145 Mo.App. 224; McQuade v. Railway, 200 Mo. 150; Thompson v. Livery Company, 214 Mo. 487; Blyston-Spencer v. Railroad, 152 Mo.App. 118; Sharp v. Railway, 213 Mo. 525; Childres v. Railroad, 141 Mo.App. 685. (2) The case was tried on the humanitarian doctrine and was submitted to the jury on that theory alone, and by being submitted to the jury on that theory alone by plaintiff's instructions all other charges of negligence and theories were eliminated. White v. Railroad, 202 Mo. 561. (3) The court did not err in refusing to give appellant's instruction in the nature of a demurrer offered at the close of plaintiff's evidence and again at the close of all the evidence. Behen v. Transit Co., 186 Mo. 441; McQuade v. Railroad, 200 Mo. 156; Nipper v. Railroad, 145 Mo. 227; Waddell v. Railroad, 213 Mo. 16. (4) Plaintiff's instruction marked P-1 1/2 was a correct declaration of the law. Nipper v. Railroad, 145 Mo. 228; Waddell v. Railroad, 213 Mo.App. 16; Zander v. Railroad, 206 Mo. 464; Spencer v. Transit Company, 221 Mo. 310. (5) The allegation in plaintiff's petition that defendant's motorman failed to have the car under control when it ran over plaintiff and as it approached plaintiff, did not mean when properly construed, namely when construed "liberally with a view of substantial justice between the parties," does not mean that the car was running away or was beyond the control of the motorman. R. S. 1909, section 1831; Cornovski v. T. Co., 207 Mo. 263; Cyrton v. T. Co., 205 Mo. 692; Meeker v. Railway, 178 Mo. 173.

OPINION

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, Kansas. 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, Kansas, 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 southbound 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 eight or ten 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 thirty or forty feet if it had been running eight miles per hour and in fifty or fifty-five feet if its speed had been ten 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 him 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 content 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 his perilous position upon or near said track, or approaching his perilous position upon or near said track, or attempting to get out of his perilous position upon or near said track, within reasonable time to thereafter have stopped said car, or slacked the speed thereof, without injury to the people upon said car, and thereby to have prevented striking and injuring plaintiff, as above set forth; but said servants and agents of defendant carelessly and negligently failed and neglected to do so."

The negligence pleaded in the fourth paragraph was the only act of negligence submitted to the jury in the instructions given at the request of plaintiff. The principal one of these instructions was as follows: "The court instructs the jury that if you find and believe from the evidence in this case that plaintiff, Frank Gaedis, is a minor of about seven (7) years of age and that August Gaedis is legally acting as next friend of said Frank Gaedis for the prosecution of this suit, and if you further find and believe from the evidence that on September 18, 1908, North 5th street was a public street and thoroughfare in Kansas City, Kansas, and that upon said Sept. 18 1908, at about 2 o'clock p. m. thereof Frank Gaedis was playing with his sister upon the west street railway track on said North 5th street, near and a short distance north of Elizabeth street, and that while so playing one of defendant's southbound electric cars ran against plaintiff and over his left hand, thereby so injuring and mashing said left hand that three fingers thereof had to be and were on account thereof and as a direct result thereof amputated. and if you further find and believe from the evidence that the motorman in charge of said car...