Griggs v. Dunham

• Decision Date: 10 June 1918
• Docket Number: No. 12896.,12896.
• Parties: GRIGGS v. DUNHAM et al.
• Court: Missouri Court of Appeals

204 S.W. 573

GRIGGS v. DUNHAM et al.

No. 12896.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially published."

Action by Georgia B. Griggs against Robert J. Dunham and others. From judgment for plaintiff, defendants appeal. Affirmed.

Roscoe Conkling, of Kansas City, for appellants. Hadley, Cooper & Neel, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages which plaintiff has suffered by the death of her husband who was killed by one of defendants' street cars. She recovered judgment in the trial court.

The action is based on the humanitarian rule. The deceased was intoxicated, and in that condition got on one of defendants' Troost avenue south-bound cars at Nineteenth street at about 9 o'clock p. m. in December, 1915, and was carried to Thirty-Eighth street, when he left the car and was seen to stagger around the rear end. He was shortly seen lying on the track near this place, and was killed by the car following the one he had left. The track was straight and the view unobstructed, and though after night, the car was equipped with a headlight and an arc light hung overhead at the street corner near where he was lying. Tests were afterwards made in the interest of plaintiff as to the distance that a man could be seen lying prone on the track, and it was made to appear by such tests that a motorman, on the lookout, could easily have distinguished him for a distance of more than 200 feet. It appeared that the car's equipment for stopping was in good order, and that at the rate the motorman himself testified he was running when he actually saw deceased it could have been stopped within less than 12 feet. But without standing on the statement of any one witness as to the rate of speed, or the different distances in which the car could have been stopped when running at different rates of speed, we feel free to state that there was abundant evidence that deceased could have been seen lying on the track by a motorplan on the lookout in ample time to have avoided running over him, even at tare highest rate of speed stated by any of the witnesses. So we conclude there was no ground upon which to base defendants' demurrer to the evidence. Trigg v. Water L. & T. Co., 215 Mo. 521, 538, 114 S. W. 972; Murphy v. Railroad, 228 Mo. 56, 128 S. W. 481.

But defendant insists that harmful error was committed by the court in admitting evidence showing tests made by witnesses as to the distance a man could be seen lying on the track at 9 o'clock at night. These tests were shown to have been made under the same conditions existing that night, and they found place in this case from the fact that the motorman, in excusing himself for having caused the catastrophe, stated something about shadows along the track preventing a clear view. When one is confronted, and perhaps confused, with a dispute whether a certain object, at a certain place, can be seen from a given point, we know of no better way to absolutely determine the matter than to go straightway and test it. Amsbary v. Grays Harbor Ry. Co., 78 Wash. 379, 139 Pac. 46. Of course, the test must be made under conditions like those involved in the dispute. Riggs v. Met. St. Ry. Co., 216 Mo. 304, 115 S. W. 969; Burton v. Railroad, 176 Mo. App. 14, 162 S. W. 1064.

In the instance here involved a night like the one in which deceased was killed was selected, and the same hour of the night; an object the size and shape of a man was laid on the track; the car, lights, and track were the same, and the surroundings were unchanged. Witnesses relieved the case...