Gessner v. Metropolitan Street Railway Company

• Citation: 112 S.W. 30,132 Mo.App. 584
• Parties: C. E. GESSNER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 29 June 1908
• Court: Kansas Court of Appeals

112 S.W. 30

132 Mo.App. 584

C. E. GESSNER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 29, 1908

Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.

Reversed and remanded.

John H Lucas, F. G. Johnson and Halbert H. McCluer for appellant.

(1) The court erred in refusing defendant's peremptory instruction for the reason that, under the evidence and the pleadings, the plaintiff was not entitled to recover. Reno v. Railroad, 180 Mo. 486; Grout v Railroad, 102 S.W. 1029; Rissler v. Transit Co., 113 Mo.App. 125; Heintz v. Transit Co., 115 Mo.App. 670; Heinzle v. Railroad, 182 Mo. 555; Ruchenberg v. Railroad, 161 Mo. 70. (2) The court erred in giving instructions numbered 1, 2, 3, 4 and 5, and each of them, requested by the plaintiff. As to one and two Schroeder v. Transit Co., 111 Mo.App. 67. As to five: Campbell v. Transit Co., 121 Mo.App. 406-412; Fisher v. Lead Co., 156 Mo. 495; Politowitz v. Tel. Co., 115 Mo.App. 57; Briscoe v. Railroad, 118 Mo.App. 671; Kohr v. Railroad, 117 Mo.App. 308; Browning v. Railroad, 118 Mo.App. 668.

Bird & Pope for respondent.

(1) The evidence made a case for the jury under both the first and the last chance rules. Richmond v. Railroad, 123 Mo.App. 495; Goff v. Transit Co., 199 Mo. 694; Wise v. Transit Co., 198 Mo. 556; Moore v. Transit Co., 194 Mo. 1; O'Keefe v. Railroad, 124 Mo.App. 622; Mertens v. Transit Co., 122 Mo.App. 304; Kimble v. Railroad, 108 Mo.App. 78; Moritz v. Transit Co., 102 Mo.App. 662. (2) And it was not at all necessary for the plaintiff, by expert witnesses, to show the exact distance in which the car should have been stopped by an ordinarily prudent motorman. Richmond v. Railroad, 123 Mo.App. 495; Beier v. Transit Co., 197 Mo. 215; Holden v. Railroad, 177 Mo. 456; O'Keefe v. Transit Co., 124 Mo.App. 622; Rogers v. Transit Co., 117 Mo.App. 678; Dairy Co. v. Transit Co., 103 Mo.App. 90; Linder v. Transit Co., 103 Mo.App. 579; Barrie v. Transit Co., 102 Mo.App. 92; Shanks v. Traction Co., 101 Mo.App. 702; Agnew v. Railroad, 125 Mo.App. 587; McFern v. Gardner, 121 Mo.App. 1; Schroeder v. Transit Co., 111 Mo.App. 67; Buren v. Transit Co., 104 Mo.App. 224. (3) It is claimed that the giving of plaintiff's instructions was error.

OPINION

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 two hundred 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 hurt. The negligence charged is in the conductor and motorman failing to keep a proper lookout for persons on said street; and in failing to keep the car under such control that it would not be run into and upon persons and wagons; and in running the car at too great a rate of speed and in a careless and negligent manner; and in failing to check the speed or stop the car and thereby avoid running into the wagon in which plaintiff was seated after seeing plaintiff or by ordinary care could have seen him. The answer was a general denial and contributory negligence on part of the plaintiff.

There was evidence tending to support the petition, and also that defendant was not guilty of negligence, and that plaintiff himself was guilty of contributory negligence.

Complaint is made of plaintiff's instruction numbered 1, in that it assumes that defendant was guilty of negligence either in failing to keep the car in control, or by failure to check the speed or stop the car. We think the complaint well founded. That portion of the instruction reads: "and that said injuries to the plaintiff, if any, were caused by the carelessness and negligence of the defendant either by the failure of the motorman in charge of said car to keep said car under such control that it would not be 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." It does not submit to the jury the hypothesis whether a failure to keep the car under control, or a failure to...