Garner v. Metropolitan Street Railway Co.
| Decision Date | 27 January 1908 |
| Citation | 107 S.W. 427,128 Mo.App. 401 |
| Parties | ISAAC W. GARNER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
John H Lucas, Ben T. Hardin and Ben F. White for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence at the close of the trial. Even if the defendant had been shown to be guilty of negligence, the plaintiff himself admitted that he could have stopped his own car in time to have avoided the collision, and failed to do so. McGahan v. Transit Co., 100 S.W. 603. (2) The court erred in refusing defendant's instruction number 3 as asked, and in modifying the same. It was authorized by the evidence of Nannie Dillon, Jennie Montavy and S. B. Barnes. (3) The court erred in refusing to set aside the verdict of the jury and granting a new trial. The verdict was against the express instructions of the court, plaintiff's number 2. This instruction properly declared the law and was based upon plaintiff's own evidence. Wehringer v Ahlemeyer, 23 Mo.App. 281; Karrer v. Railroad, 76 Mich. 400, 43 N.W. 370; Murphy v. Weil, 89 Wis 146, 61 N.W. 315; Emerson v. Santa Clara Co., 40 Cal. 543; Dent v. Bryce, 16 S.C. 1-4; Abbott's Civil Trial Brief, pp. 503-7.
Joseph A. Guthrie, for respondent, filed argument.
--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 employees, 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 signalling, at or near the east end of said single track for the purpose of signalling 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 single track, was equipped as aforesaid, was in an imperfect, unsafe and defective condition, in this, that the shoes of said brake would not, and could not, by turning said iron wheel to its utmost limit, be made to come into contact with the wheels of said car with sufficient strength, or compactness, to stop said car within a reasonable distance." And that the "defendant knew, or by the exercise of ordinary care, could have known of the defective and imperfect condition of said brake, a sufficient length of time to have enabled said defendant to repair said brake or to replace the same with a new one before the occurrence of the collision hereinafter described."
The answer, in addition to a general denial, contains the plea that the injuries received by plaintiff were caused by his own fault and negligence and the further plea that they were "the result of risks and dangers ordinarily incident to the employment and business in which he was at the time engaged and that all said risks and dangers were assumed by plaintiff by his contract of employment, and in accepting employment by the defendant."
Evidence introduced by plaintiff tends to show that the brake (operated by hand power) on the westbound car was defective in the respect charged in the petition and that the existence of the defect had been brought to the notice of defendant some three days before the injury. Further, it appears from that evidence that the motorman in charge of that car tried very hard to bring it to a stop at the proper place and would have succeeded had the brake shoes operated properly on the wheels. On behalf of defendant, the evidence tends to show that plaintiff disregarded instructions in not waiting at the west end of the single track for the westbound car to pass that the brakes of that car were not defective and that plaintiff was guilty of negligence in not bringing his car to an immediate stop as soon as he saw the other car approaching, and, further, was negligent in abandoning his post while he was running over the single track to engage in conversation with passengers...
To continue reading
Request your trial