Gessner v. Metropolitan St. Ry. Co.

• Decision Date: 17 May 1909
• Citation: 119 S.W. 528,137 Mo. App. 47
• Parties: GESSNER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

119 S.W. 528

137 Mo. App. 47

GESSNER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 17, 1909.

1. APPEAL AND ERROR (§ 1064) — HARMLESS ERROR — INSTRUCTIONS.

Where the court should have granted a demurrer to the evidence, error in the instructions will not be considered.

2. TRIAL (§ 142) — DIRECTING VERDICT — INFERENCES FROM EVIDENCE.

While the court in directing a verdict should not draw arbitrary conclusions from physical facts at variance with the testimony, where a conclusion from conceded physical facts is so plain that reasonable minds cannot differ about it, the testimony contrary to such facts must be rejected.

3. STREET RAILROADS (§ 117) — COLLISION WITH VEHICLE — QUESTION FOR JURY.

The testimony of a driver of a wagon that he started to drive off of the track when the car was about 25 feet away, and that while the wagon was leaving the track the car struck on the hub of the front wheel, raised no issue for the jury, where the conceded physical facts showed that the wagon could not have been in the position described by the driver.

4. STREET RAILROADS (§ 85) — USE OF STREETS BY TRAVELERS AND STREET CARS.

Neither a driver nor a street railway company possesses a superior right to the part of the street occupied by the tracks, but drivers

of vehicles must leave the track to permit the passage of cars.

5. STREET RAILROADS (§ 90) — CARE REQUIRED OF MOTORMAN.

A motorman may assume that a driver of a vehicle will leave the track in time to permit the free passage of the car.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by C. E. Gessner against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Bird & Pope, for appellant. John H. Lucas and Frank G. Johnson, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries which he alleges, were caused by the negligence of defendant. The cause was here on a former appeal from a judgment in favor of plaintiff, but the judgment was reversed and the cause remanded on account of errors in instructions given at the request of plaintiff. 132 Mo. App. 584, 112 S. W. 30. A second trial to a jury resulted in a verdict and judgment for defendant, and plaintiff appealed. Errors in the rulings of the trial court in the instructions asked by the parties are assigned by plaintiff as grounds for a reversal of the judgment; but the questions thus raised need not be discussed, since we have reached the conclusion that the learned trial judge should have sustained defendant's request for an instruction in the nature of a demurrer to the evidence.

The injury occurred late in the afternoon of January 21, 1905, on West Ninth street in Kansas City, at a point about 200 feet west of Mulberry street. Ninth street run east and west, crosses the West Bottoms, and is much used for travel between Kansas City, Mo., and Kansas City, Kan. One of defendant's lines of street railway turns into Ninth street from Mulberry street, and thence runs along Ninth street westward. It consists of two tracks; the north track being used by west-bound cars and the other for east-bound cars. The tracks are laid in the middle of the street and are between two lines of iron pillars (50 feet apart) which support an elevated street railway. The pavement at Ninth street on either side of the car tracks was in bad repair, and vehicles using the street generally used the tracks and the space between them, as the paving there was in good condition. The plaintiff was driving eastward on Ninth street. He had a big strong horse and a heavy wagon, but no load, and be was seated on a high spring seat at the front end of the wagon. There was a wagon just in front of him and another just behind. This string of wagons was driving on the south car track until it was overtaken by an east-bound car, when the wagons were turned onto the north track to permit the car to pass. When plaintiff was perhaps 250 feet from Mulberry street, a west-bound car turned into Ninth street, stopped at the corner to take on passengers, and then proceeded westward at a speed of eight or nine miles per hour. Plaintiff admits he saw this car when it appeared at the curve, knew it was coming on the north track, and that he would have to drive off of that track to allow it to go by. He states that he did not start to drive off until the car was about 25 feet away, and while his wagon was leaving the track, but before it had passed beyond the range of the approaching car, it was struck on the hub of the right front wheel with force so violent that plaintiff was thrown upward from his seat and fell to the pavement in front of the wagon.

Witnesses for plaintiff say that, after the collision, the car ran from one to three car lengths before it stopped. The other wagons in the string were driven off the track...