Glenn v. Metropolitan St. Ty. Co.

• Decision Date: 25 November 1912
• Citation: 150 S.W. 1092,167 Mo. App. 109
• Parties: GLENN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

150 S.W. 1092

167 Mo. A. 109

GLENN v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

November 11, 1912.

Rehearing Denied November 25, 1912.

1. WITNESSES (§ 321)—IMPEACHMENT—RIGHT TO IMPEACH OWN WITNESS.

Where plaintiff, in an action against a street railroad for wrongful death, called defendant's superintendent as a witness, it was error to permit him to introduce evidence tending to impeach such witness.

2. APPEAL AND ERROR (§ 1053) — HARMLESS ERROR — ADMISSION OF EVIDENCE — WITHDRAWAL.

Where plaintiff, in an action against a street railroad for wrongful death, called defendant's superintendent to prove that he had ordered deceased to take charge of the car, and then undertook to impeach his testimony on that point in order to give it affirmative effect on the minds of the jury, the error in introducing such impeaching evidence was not cured by the giving of his requested instruction withdrawing such evidence.

3. EVIDENCE (§ 474) — OPINION EVIDENCE COMPETENCY.

A witness not shown to be an expert, and who had had no experience in building and operating street railroads, was incompetent to testify as to whether a switch was reasonably safe under the circumstances.

4. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—EVIDENCE.

In an action against a street railroad for wrongful death, where the sole issue submitted was as to the reasonable safety of a switch, alleged to be the proximate cause of the injury,

evidence as to whether another employs was a competent motorman, and at whose instance he operated the car, was immaterial.

5. APPEAL AND ERROR (§ 1052) — HARMLESS ERROR—ADMISSION OF EVIDENCE—FACTS IRRELEVANT TO ISSUE.

Error in the admission of the testimony of a nonexpert witness as to whether a street railroad switch, alleged to have been the proximate cause of injury, was reasonably safe was harmless, where it was shown that, if the car had been in proper working order and carefully operated and stopped before reaching the switch at a point indicated as a safety stop, the switch would have been safe.

6. NEGLIGENCE (§ 56)—"PROXIMATE CAUSE"— NATURAL AND PROBABLE CAUSE.

A "proximate cause," in the law of negligence, is such a cause as operates to produce particular consequences without the intervention of any independent, unforeseen cause, without which the injuries would not have occurred ; it is the cause which sets in motion a train of events which, in their natural sequence, ought and might be expected to produce an injury if undisturbed by any independent or intervening cause.

7. MASTER AND SERVANT (§ 129) INJURIES TO SERVANT—PROXIMATE CAUSE—SWITCH.

In an action against a street railroad for wrongful death of a servant from jumping of a car at a switch, where it appeared that had the car been in good order, and managed in a reasonably careful manner, it would not have struck the switch at a rapid rate of speed, and would not have jumped the track, a defect, if any, in the switch was not the proximate cause of the injury.

8. MASTER AND SERVANT (§§ 101, 102)—MASTER'S DUTY—SAFE APPLIANCES AND PLACES FOR WORK.

A master must use ordinary and reasonable care to provide the servant with reasonably safe appliances and places for work ; but he is not required to furnish absolutely safe appliances.

9. MASTER AND SERVANT (§ 105) — MASTER'S LIABILITY — APPLIANCES AND PLACES FOR WORK—CUSTOMARY USE.

The rule that the usual and customary manner in which a thing is done amounts to reasonable care does not fix that as an absolute standard of care ; the rule is not intended to fix responsibility for want of care, but to justify the act if it is performed in the usual and customary manner; and, notwithstanding a switch may not have been constructed and maintained in the usual and customary manner, a street railroad is not negligent if its construction and maintenance are reasonably safe.

10. MASTER AND SERVANT (§ 112)—INJURIES TO SERVANT—SAFETY OF SWITCH.

Where a switch is so constructed that street cars were operated over it thousands of times in safety, and where a car would have passed over it safely if the motorman in charge had kept it under control as it approached the switch and stopped at the post indicating a safety stop, the switch, as a matter of law, was reasonably safe.

11. APPEAL AND ERROR (§ 179) — MATTERS NOT PRESENTED BELOW — WITHDRAWAL OF ISSUE.

Plaintiff in an action against a street railroad for wrongful death, who withdrew from the jury the question as to the effect of the negligent acts of a fellow servant in operating the car on which he was killed, was not in a position to ask for an affirmance upon that issue of fact.

Appeal from Circuit Court, Jackson County; O. H. Lucas, Judge.

Action by Charles R. Glenn, administrator of the estate of Herbert Glenn, deceased, against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John H. Lucas and T. B. Buckner, both of Kansas City, for appellant. Henry J. Latshaw and L. N. Dempsey, both of Kansas City, for respondent.

BROADDUS, P. J.

This is a suit by Charles R. Glenn, as administrator, to recover damages on account of the alleged negligent killing of Herbert Glenn by the defendant, a street railway company. The deceased was killed on the 24th day of February, 1908, at about 8 o'clock p. m., at Eighteenth and Jackson streets, in Kansas City, Mo. The deceased was 27 years of age, and at the time in the employ of defendant. At the same time, a man by the name of Walker was also in the employ of defendant. The two were employed about the car barn of defendant, and Glenn was not a motorman, and Walker only once in a while acted as such.

Plaintiff's evidence tends to show that on the day in question deceased was out on the road in a certain car, but under what circumstances he does not show. The defendant's explanation is that one of the cars in use became crippled, which fact was telephoned to the barn, whereupon Glenn got out another ear to take its place. Walker got onto this car and deceased asked him to operate it. The passengers were transferred to this car. After this, according to plaintiff's evidence, defendant's superintendent at the barn, under whose orders Glenn was working, said, "Glenn, go out and get that car, the motorman is drunk"; that Glenn went out and got on the front vestibule, but did not succeed in getting control of the car. The car was operated by Walker on east to Jackson street, thence south on Jackson to its terminus. The grade on Jackson street from Twenty-Fourth to Twentieth street is rather a steep downgrade; from Twentieth street to Eighteenth street the grade is not so steep. At Eighteenth street defendant operates a railroad north on Jackson street. There is a switch at Eighteenth and Jackson streets which must be manipulated before a car going north on Jackson street can pass, but there is no provision made for manipulating the switch to let the cars pass that are being operated on the Eighteenth and Jackson street line, as they can pass back and forth; the switch being open for that purpose, and at all times closed, until manipulated, to the cars passing on the line operated north and south on Jackson beyond the intersection of the two streets. On the occasion in quesion the car on its return trip, went down the decline at a rapid rate of speed, and, when it struck the curve at the intersection of the two streets, it jumped the track, causing the instant death of Glenn.

The plaintiff introduced a witness who testified that the construction of the switch was faulty in that it...