Gessner v. Metropolitan St. Ry. Co.

• Decision Date: 29 June 1908
• Citation: 132 Mo. App. 584,112 S.W. 30
• Parties: GESSNER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

112 S.W. 30

132 Mo. App. 584

GESSNER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

Rehearing Denied July 15, 1908.

1. TRIAL—INSTRUCTIONS—ASSUMING FACTS.

In an action for injuries caused by a collision between a wagon and a street car, a portion of one of plaintiff's instructions read: "And that said injuries to the plaintiff, if any, were caused by the carelessness and negligence of the defendant either by failure of the motorman in charge of said car to keep said car under such control that it would not run into and upon the said wagon in which plaintiff was seated, or by the failure of the motorman in charge of said car to check the speed of or stop said car, and thereby avoid running into the wagon in which plaintiff was seated, when he saw, or by the exercise of ordinary care ought to have seen, that said wagon was in a situation where it was liable to be run into by said car, unless the speed of said car was checked, or it was stopped before it collided with said wagon." Held erroneous as assuming that defendant was negligent either in failing to control the car, or check its speed or stop it.

2. APPEAL AND ERROR—RECORD—MATTERS NOT APPARENT OF RECORD—EVIDENCE—JUDICIAL NOTICE—WIDTH OF LOT.

Judicial notice cannot be taken by the court on appeal of the width of a lot in support of an instruction not based on any certain evidence thereof.

3. STREET RAILROADS—COLLISION WITH VEHICLE—ACTION FOR INJURIES—MISLEADING INSTRUCTIONS.

In an action for injuries in colliding with a street car, an instruction for plaintiff stated that, if plaintiff was negligent in driving along defendant's west-bound track, "then he cannot recover herein, and your verdict should be for the defendant." In the next sentence it proceeded: "But if you further find and believe from the evidence that plaintiff was in a position of peril," and that defendant's servants saw him and could have stopped, etc., "and carelessly and negligently failed to do so, then you will find for the plaintiff, and not for the defendant, notwithstanding the said negligence of the plaintiff in driving along the west-bound track of the defendant." Held contradictory and misleading.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

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

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

ELLISON, J.

Plaintiff's action was brought to recover damages for personal injuries received by a collision between a wagon he was driving and one of defendant's street cars. The judgment was for the plaintiff.

The petition alleges that plaintiff was seated in a one-horse wagon which he was driving east on Ninth street (a street running east and west), in Kansas City, along and upon the north track of defendant's street railway about 200 feet west of Mulberry street, when one of defendant's cars was so carelessly managed and controlled that it was run into the wagon and plaintiff thrown to the street, whereby he was...