Garner v. Metropolitan St. Ry. Co.
| Decision Date | 27 January 1908 |
| Citation | 107 S.W. 427,128 Mo. App. 401 |
| Parties | GARNER v. METROPOLITAN ST. RY. CO. |
| Court | Missouri Court of Appeals |
Owing to a washout, the two tracks of a street railway were temporarily placed on the same ties for a distance of 425 feet, so that cars could not pass on such section. West-bound cars had the right of way. Owing to an obstruction to the vision, a motorman approaching the single track from either end could not see a car at the other end, so that another order was promulgated that a motorman in charge of an east-bound car should proceed over the track, if no car coming from the opposite direction was in sight. Plaintiff, in charge of an east-bound car, stopped at the west approach of the single track, saw no car ahead, and proceeded slowly until within 150 feet from a point where the tracks diverged at the east end, when he saw a west-bound car approaching. He believed that the west-bound car would stop to enable him to pass, but the motorman was unable to do so, and a collision resulted after plaintiff had stopped his car, owing to defective brakes on the colliding car. Held, that plaintiff was not negligent.
4. APPEAL — REVIEW — QUESTIONS OF FACT — CREDIBILITY OF WITNESSES.
Where the salient facts to which plaintiff testified were supported by the testimony of other witnesses and by the conceded physical facts, his evidence could not be rejected by the appellate court in determining whether a demurrer to the evidence was properly overruled simply because he was shown to be a man of bad moral character; his credibility being an issue of fact on which the verdict of the jury is conclusive.
5. TRIAL — INSTRUCTIONS — MODIFICATION — COMMENT ON EVIDENCE.
Modification of one of defendant's instructions by striking out mere comment on the evidence was proper.
6. APPEAL — REVIEW — QUESTIONS OF FACT — SUFFICIENCY OF EVIDENCE.
Where a cause was fairly tried and submitted to the jury, and there was substantial evidence on each side of the controversy, the judgment could not be set aside on appeal, though the appellate court, if sitting as triors of fact, would have arrived at a different conclusion from all the evidence.
Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.
Action by Isaac W. Garner against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
John H. Lucas, Ben T. Hardin, and Ben F. White, for appellant. Joseph A. Guthrie, for respondent.
This is an action brought by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the master. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $500, and defendant appealed.
At the time of the injury, May 8, 1904, plaintiff was in the employment of defendant as a motorman and was operating a car on the Independence line of defendant's street railway system in Kansas City. The road between the two cities consists of double tracks, but, owing to a washout three or four miles east of Kansas City, the two tracks, for a distance of about 425 feet, had been placed temporarily on the same ties, and occupied a lateral space a few inches wider than that covered by a single track. Cars could not pass each other in this section and defendant, by an order issued to its employés, had given west-bound cars right of way over those east bound. Owing to the presence of obstructions to vision, a motorman approaching the single track from either end could not see a car at the other end, and the right of way order mentioned provided that a motorman in charge of an east-bound car should proceed over the single track if no car coming from the opposite direction was in sight. Plaintiff, who was in charge of an east-bound car, stopped at the west approach, saw no car ahead, and proceeded forward at the rate of four or five miles per hour. When perhaps 150 feet from the point where the tracks diverge at the east end, a car approaching from the opposite direction appeared in view. Acting under the belief that it was in control of the motorman and would be stopped before it reached the single space, he continued on his way, and had almost reached the frog where the tracks separated when he became aware that the motorman of the other car, whom he had observed to be making strenuous efforts to apply the brakes, would not be able to control the car, and that a collision was inevitable. Plaintiff at once brought his car to a stop, and reversed the current in order that the forward end, instead of the side, of the car, might receive the force of the blow. The collision which followed was of sufficient force to wreck the front vestibule of plaintiff's car.
The facts we have stated are taken from the testimony of plaintiff. The negligence alleged in the petition is, first, the failure of defendant "to maintain a flagman or some other means of signaling at or near the east end of said single track for the purpose of signaling west-bound cars to stop when an east-bound car was upon said single track"; and, second, "that the brake with which said car in charge of said Barnes (the west-bound car), and then approaching said...
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