Goodloe v. Metropolitan St. Ry. Co.

• Decision Date: 02 July 1906
• Citation: 96 S.W. 482,120 Mo. App. 194
• Parties: GOODLOE v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

96 S.W. 482

120 Mo. App. 194

GOODLOE v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

July 2, 1906.

Rehearing Denied October 1, 1906.

1. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE —PLEADING.

Contributory negligence in an action for injuries is an affirmative defense which must be specially pleaded.

2. CARRIERS — STREET RAILROADS — INJURIES TO PASSENGERS — POSITION — CONTRIBUTORY NEGLIGENCE.

Where a street railway company adopted a rule requiring users of tobacco to occupy the rear vestibule of a car, and plaintiff was occupying such position in compliance with the rule at the time he was injured in a collision with another car, he was not guilty of contributory negligence because he was not seated in the car.

3. SAME—COLLISION—RES IPSA LOQUITUR.

Proof that plaintiff was a passenger on a street car, and was injured by a collision between the car in which he was riding and a car approaching from an opposite direction, was sufficient to raise a presumption of negligence which would be conclusive against the carrier on the issue of negligence, unless the carrier produced rebutting evidence.

4. SAME—NEGLIGENCE OF CARRIER.

The motorman of a street car, on which plaintiff was riding, drove the same onto an embankment, where the tracks were so close that cars could not pass. At this time, a car having the right of way approached from the opposite direction, a third of a mile away, and could have been seen by the motorman, but he failed to stop his car. The motorman of the car having the right of way saw the danger, and stopped his car before it reached the danger point, but a collision occurred, the only excuse given for which being the slippery state of the rails. Held, that the motorman of the car on which plaintiff was riding was guilty of gross negligence.

5. DAMAGES — PERSONAL INJURIES — CONCLUSIVENESS.

Plaintiff, a teamster 43 years of age, was injured while a passenger on defendant's street car. He sustained slight injuries to his head and shoulders, and a serious permanent injury to his left hand, the bones of which were broken, and healed so that the hand was so stiff that the fingers could not be closed. Plaintiff suffered great pain, and was disabled from following his vocation, or from doing any work that required the use of both hands. Held, that a verdict of $1,500 was not excessive.

6. SAME—EARNING CAPACITY — IMPAIRMENT— ISSUES.

Where the petition alleged that plaintiff's injuries were permanent and lasting in character and effect, and had caused plaintiff in the past, and would cause him in the future to suffer great bodily pain and mental anguish, and that his earning capacity had been impaired, it was sufficient to present the issue of plaintiff's total disability to earn money in the future as a result of his injury.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by Robert F. Goodloe against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and Frank G. Johnson, for appellant. L. A. Laughlin, for respondent.

JOHNSON, J.

Action by a passenger against a common carrier to recover damages for personal injuries sustained in consequence of the negligence of the carrier. Plaintiff had judgment in the sum of $1,500, and defendant appealed.

The negligence charged in the petition is "that while plaintiff was a passenger as aforesaid, and was standing on the rear platform of said car, by reason of the negligence of the defendant, said car ran into another car of defendant standing on the same track. That the force of said collision threw plaintiff violently into the car on which he was riding and onto his head, inflicting upon plaintiff injuries as follows," etc. The answer is a general denial. Defendant, as a part of its street railway system, operates a double track railroad between Kansas City and Independence. Electricity is the power used in propelling the cars. On account of the presence in the roadway of a high embankment about one-fourth of a mile long, the tracks thereon are laid so close together that both occupy a lateral space only a few inches more than that covered by each, so that while the tracks are not merged, a car going eastward on one cannot pass a westbound car on the other in that section of the road. On January 2, 1904, plaintiff, accompanied by his wife and their two sons, became a passenger at Independence on one of defendant's cars that was bound for Kansas City. His wife and sons seated themselves in the car, but plaintiff, who was chewing tobacco, stood in the rear vestibule to avoid spitting on the floor of the car, an act forbidden by the rules of defendant as well as by the dictates of common decency. The car proceeded on its way using the track for westbound cars, and all went well until it reached the section of track described. At that time, an eastbound car was passing over that section and had the right of way. It was the duty of the motorman of the westbound car to wait until the other car had passed out of the way before running his car on to the embankment, but he failed to stop, and the two cars collided. The eastbound car had come to a stop at the time of collision, but the westbound car, according to the testimony of defendant's witnesses, was running at the rate of about four miles per hour. The impact was sufficiently violent to wreck the front vestibule of the westbound car, and to pitch plaintiff forward through the open door between the body of the car and the rear vestibule, and throw him to the floor. The collision occurred about 200 feet west of the point where the tracks converge. Both cars carried headlights. The motorman of the eastbound car, introduced as a witness by defendant, testified that he saw the other car approaching when his car was on the embankment some 800 or 900 feet from the place of collision. He was running at the rate of 15 miles per hour, and, when he observed that the other car was on the point of entering into danger, he shut off the current, applied the brakes, and stopped. It was not shown that the motorman on the westbound car made any effort to stop before he reached the embankment. He was not introduced as a witness, and the only excuse for his remarkable conduct offered in evidence is that he was running downgrade and the rails were slippery owing to the condition of the weather.

The first instruction given on behalf of plaintiff is as follows: "The court instructs the jury that the burden of proof is on the plaintiff to establish his case by the preponderance of the evidence, and by a preponderance of the evidence is meant the greater weight of the credible testimony; but the court instructs the jury that if you find from the evidence that plaintiff was a passenger lawfully on board of the defendant's train at the time of the collision, appearing in evidence, and received injuries therein, then the burden of proof as to the cause of the collision is shifted upon the defendant to show to the satisfaction of the jury that said collision was caused through no fault, negligence, or carelessness of defendant's agents; and unless it is so shown the jury should find that such collision was occasioned by the negligence of defendant."

Counsel for defendant appear to think that plaintiff was at fault in choosing to stand in the vestibule instead of seating himself in the car. Def...