Good Roads Co. v. Kansas City Rys. Co.

• Decision Date: 05 January 1920
• Docket Number: No. 13427.,13427.
• Citation: 217 S.W. 858
• Parties: GOOD ROADS CO. v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

217 S.W. 858

GOOD ROADS CO. v. KANSAS CITY RYS. CO.

No. 13427.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by the Good Roads Company against the Kansas City Railways Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

H. G. Pope, of Kansas City, for appellant.

Richard J. Higgins, of Kansas City, Kan., and Norman Woodson and Charles L. Carr, both of Kansas City, Mo., for respondent.

TRIMBLE, J.

This is an action to recover damages on account of injuries done to an automobile belonging to plaintiff in a collision therewith by one of defendant's street cars on a crossing at the intersection of East Fifteenth street and Woodland avenue in Kansas City, Mo. Upon a trial the jury returned a verdict for defendant, and plaintiff has appealed, alleging error in the giving of instructions for defendant.

The petition charged:

That the damage was caused by the negligence of defendant's servants in charge of said car "in that no proper lookout was maintained for persons and vehicles on said streets in a position of danger or going into a situation of danger, in that no proper warning was given * * * the driver of said automobile * * * of the near approach of said car, in that defendant's motorman failed to exercise ordinary care in the use of the means at his command to avoid injury to said automobile after he saw, or by ordinary care could have seen, said automobile in a position of danger or going into a situation of danger, and that * * * the driver of said automobile was oblivious to his peril and the peril of said automobile when said motorman by the exercise of ordinary care in the use of the means at his command could have avoided said collision."

The answer was a general denial together with a plea:

That the danger, if any, was caused or contributed to by the negligence of plaintiff's servant "in driving plaintiff's automobile upon the west-bound car tracks at the time and place in question in front of an approaching car without looking and listening for the approach of a car; in driving plaintiff's automobile upon the west-bound tracks at the time and place in question immediately in front of a west-bound car; in driving plaintiff's automobile upon the west-hound tracks at the time and place in question in front of an approaching car, and at a time when the motorman operating said west-bound approaching car, by the exercise of ordinary care, could not have stopped said car in time to have avoided a collision."

The record as contained in the bill of exceptions does not set forth the evidence taken at the trial, but merely recites that

"Plaintiff introduced evidence tending to prove all the allegations of its petition filed in the above-entitled cause; and said defendant introduced evidence tending to prove all the allegations of its answer filed in the above-entitled cause."

Our rule 8 (169 S. W. viii) provides that it is not necessary, for the purpose of reviewing the action of the circuit court in giving or refusing instructions, to embody the whole of the testimony in the bill of exceptions, "but it shall be sufficient * * * that the bill of exceptions should state that `evidence tending to prove' a particular fact or issue was given, and that an exception was saved to the giving or refusal of the instruction founded on it."

Rule 15 (169 S. W. xiii) requires appellant to file an abstract of the record setting forth so much thereof as is necessary to a full understanding "of all the questions presented to this court for decision." And rule 18 (169 S. W. xiv) provides that for failure to comply with rule 15 the appeal will be dismissed. Respondent has, therefore, filed a motion to dismiss on the ground that the abstract does not disclose the particular facts or particular issues which the evidence tended to prove, and which, under the evidence, should be submitted in a case based on a violation of the "last chance" rule.

It will be observed, however, that the abstract says plaintiff "introduced evidence tending to prove all the allegations of its petition." Now, these allegations were that the negligence which caused the injury...