George Muehlebach Brewing Co. v. Dunham

• Decision Date: 14 June 1915
• Docket Number: No. 11582.,11582.
• Citation: 177 S.W. 1067
• Parties: GEORGE MUEHLEBACH BREWING CO. v. DUNHAM et al.
• Court: Missouri Court of Appeals

177 S.W. 1067

GEORGE MUEHLEBACH BREWING CO. v. DUNHAM et al.

No. 11582.

Kansas City Court of Appeals, Missouri.

June 14, 1915.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially reported."

Action by the George Muehlebach Brewing Company against Robert J. Dunham and another, receivers of the Metropolitan Street Railway Company, and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

John H. Lucas, Charles A. Stratton, and John P. Bramhall, all of Kansas City, for appellants. Gage & Richardson, of Kansas City, for respondent.

TRIMBLE, J.

A large automobile truck belonging to respondent was struck and almost demolished by a street car. This suit was brought to recover the damage caused thereby. The petition states that those in charge of the car were negligent in that they failed to stop or check its speed after they saw, or by the exercise of reasonable care could have seen, the truck on the street car tracks in time to have avoided striking it. A verdict was returned assessing damages, and appellants bring the case here.

The first question to be disposed of is whether there can be a recovery in any event. Appellants claim that their demurrer to the evidence should have been sustained because the evidence shows conclusively that the operator of the truck was guilty of negligence precluding recovery. This contention is on the theory that the evidence conclusively shows that the driver of the truck knew of the danger before he went upon the track, and yet willfully drove upon it, knowing he would not have time to get off before being struck. Appellants' view is that the case is within the scope of the remarks made in Kinlen v. Metropolitan Street Railway Co., 216 Mo. 145, loc. cit. 164, 165, 115 S. W. 523, and of the cases of "Pope v. Wabash Railroad Co., 242 Mo. 232, 146 S. W. 790, and Reeves v. Kansas City, etc., R. Co., 251 Mo. 169, loc. cit. 177, 158 S. W. 2. But a careful study of these cases will demonstrate that the rule there announced is applied under circumstances which conclusively show either that the injured party was in a place of safety and went into danger so near the time of collision as to afford the defendant no time to avoid it, and hence he cannot be said to be negligent, or else that the injured person was cognizant of the danger and could have easily gotten out of it, in which last case the defendant is not negligent, since he has a right to presume that the other party will get out of the way. In the Pope Case, supra, the Supreme Court, after quoting what was said In the Kinlen Case, says, on page 240 of 242 Mo., on page 792 of 146 S. W.:

"The foregoing language must be understood as applying to a case in which a person is upon the track at a place where he could safely have gotten off and out of danger when conscious of the train's approach."

But the facts in the case at bar present nothing of this kind, nor do they bring the case anywhere near the above-cited cases. The evidence on this point amply tends to show the following facts: The collision occurred on Southwest boulevard at a point about 250 feet or more southwest of the intersection of Baltimore avenue and said boulevard. The former street tuns north and south and the latter northeast and southwest. The driver of the truck came south on Baltimore avenue and turned southwest on Southwest boulevard, keeping to the righthand or north side of the street, till he was beyond respondent's warehouse, situated on the southeast side of Southwest boulevard, and then turned south across the street car tracks, intending to turn around and place the truck in front of the warehouse headed back northeast in the direction from which he came. Owing to the length of the truck and the narrowness of the boulevard (which was not nearly so wide as its name would indicate), the turn could not be made in a continuous circle, but it was necessary to run the truck south to the south curb, stop and reverse the engine and back west, then stop again and reverse the machine to go forward in a northeast direction on the southeast side of the boulevard next to the curb and in front of the warehouse. In making this turn, the truck would necessarily be on and across the double track street railway in the center of the boulevard. The truck was a large and ponderous affair, which moved slowly, and, in making these reverses of the engine to change from a forward to a backward motion and vice versa, the apparatus must be manipulated with some degree of deliberation and in regular order of sequence, else the engine will stop dead still. In backing west, the truck went across the west-bound street car track until the center of the truck was directly over or in the center of the track, when it was stopped, and the driver changed gears so as to go forward. Just at this moment a buggy, going northeast along the boulevard, drove in front of the truck, thus preventing the truck from moving forward as quickly as it might have done, for, if it had done so, there was danger of the ponderous truck crushing the buggy and injuring the occupants. While the truck was thus with its center across the track, a street car, coming from the northeast, struck the truck, turned it upside down, and knocked it a distance of 15 or 18 feet and off the track. The evidence tends to show that there was a curve in the track about a olock northeast of the point of collision, but, from this curve to the place where the accident occurred, the track was practically level and straight, and the view was unobstructed; that the accident occurred about 9 o'clock in the morning on a clear day, and the tracks were dry; that the moment the...