Griggs v. Kansas City Rys. Co.

Decision Date15 December 1920
Docket NumberNo. 22124.,22124.
PartiesGRIGGS v. KANSAS CITY RYS. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by G. B. Griggs against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard J. Higgins, of Kansas City, Kan., and Roscoe P. Conkling, of Kansas City, Mo., for appellant.

Cooper, Neel & Wright and J. Stanley Bassett, all of Kansas City, Mo., for respondent.

WHITE, C.

The appeal is from a judgment for damages incurred on account of the death of the plaintiff's husband, caused by the alleged negligence of the defendant company. On the first trial of the case a verdict was obtained by the plaintiff in the sum of $7,500; on an appeal to the Kansas City Court of Appeals the judgment was affirmed. Griggs v. Dunham et al., Receivers, 204 S. W. 573. By a writ of certiorari the case reached this court, where the judgment of the Kansas City Court of Appeals was quashed on account of an erroneous instruction which that court had approved. State ex rel. Dunham v. Ellison et al., 213 S. W. 459. On the second trial there was a verdict and judgment in favor of the plaintiff for $10,000, and from that judgment the defendant is prosecuting its appeal in this court.

Charles C. Griggs, the husband of the plaintiff, was employed in a hat store on Main street in Kansas City. He was killed on the night of the 7th of December, 1915. On that day he started home about 6 o'clock in the evening, met a companion, and the two, apparently, got drunk together. It was nearing 9 o'clock at night when Griggs boarded a street car to go home. This car ran south on Troost avenue until it arrived at Thirty-Eighth street, where there was a safety stop. On the way Griggs had a quarrel and a fight with the conductor on some account, probably over his fare. They were separated by a passenger. On the arrival of the car at the safety stop, before crossing Thirty-Eighth street, Griggs got off and walked around the rear end of the car. His gait at the time was unsteady; as described by a passenger who saw him, "He circled around back of the car." That was the last seen of him alive by any one in the car. A car following the one from which he descended came along a few minutes later; he was then lying across the track, and that car ran over him. It is admitted in the record that he was killed by that collision, which occurred shortly after 9 o'clock.

The plaintiff introduced a number of witnesses, including the motorman in charge of the car which killed Griggs, passengers on that car, and passengers on the car on which he was riding. The defendant presented a demurrer to the evidence offered by the plaintiff, which demurrer was overruled. The defendant offered no evidence, and the case went to the jury upon the evidence alone produced by the plaintiff.

The negligence alleged was the failure of the defendant to observe the humanitarian rule, and the only issue submitted to the jury was whether the defendant's motorman could have stopped the car which he was driving in time to have avoided killing Griggs, after he saw, or by the exercise of proper care could have seen, Griggs on the track. The facts pertinent to that issue will be considered in discussing the merits of the demurrer to the evidence.

I. The length of the block in which the car was running, between Thirty-Seventh and Thirty-Eighth streets on Troost avenue, is stated to be 609 feet, Thirty-Eighth street being south of Thirty-Seventh street. A safety stop at Thirty-Eighth street required all cars going south on Troost avenue to stop at that point. The motorman testified that after passing Thirty-Seventh street, when he was about 200 feet north of Thirty-Eighth street, "he throwed off" his power preparatory to stopping at the safety stop. When he was about 15 feet from where he struck Griggs he was going about 15 miles an hour, but was slowing down, and when he got 50 feet from Griggs he was going about 8 miles an hour, and continued at about that rate of speed until his car struck the man. He testified that there were shadows across the track, and he did not identify Griggs as a man, lying across the east rail of the track, until within 15 feet of him. Inasmuch as the motorman, traveling at 8 miles an hour, did not see Griggs until he was within 15 feet of him, a distance which would be traversed in a little more than, a second, it is contended that the time was not long enough for the motorman to set his appliances in operation and stop the car before it struck; that the law does not approve verdicts which are predicated upon an inference as to what may he done in so small a fraction of time. The cases cited by appellant on that proposition are mostly railroad cases where steam railroads are operated at a very high speed, and are not equipped with appliances by which a stop may be made within a very short space. The time in which a locomotive engineer driving a steam engine may set his brakes and begin the operation of stopping his train could not be considered in a case of this kind. The necessity of quick stops on the occurrence of sudden emergencies applies more particularly to street railways operating upon thoroughfares in a city, where pedestrians and vehicles constantly are entering upon and crossing street railway tracks.

The car in question was shown to be of what is termed the 200 type, which term was applied to a group of cars purchased by the defendant company of serial numbers from 900 to 950. By the testimony of a former division superintendent of the Kansas City Street Railways Company, who ran the car to the barn after the collision, this car was shown to have been in good condition, with brakes in good condition, when the accident occurred.

Troost avenue, between Thirty-Seventh street and Thirty-Eighth street, was practically level, there being a slight upgrade to the south, the direction in which the car was going, of four-tenths of 1 per cent. Two men, who had operated defendant's cars and were acquainted with the equipment and operation of the cars of the 900 type, testified that one of such cars, at the point mentioned, under the conditions then existing, with a dry track, going at the rate of 8 miles an hour, could be stopped within 8 or 10 feet, and going at 15 miles an hour could be stopped in 20 feet. In the endeavor of the defendant to show the time which must lapse between the apprehension of danger and the act of the motorman in putting into operation his safety appliances, these witnesses were asked to state how many seconds it would take to put on the air and stop the car. Various answers were returned to this question, putting it at "just a second," or, "a mighty few seconds." One of the witnesses explained that he didn't believe he could "judge of that in seconds or minutes either." One of the motormen, when asked how long it would take to realize they must make a stop and act upon it, answered: "Just that quick (indicating), just to throw the air on. It would take right then." Then he explained that the time it would take until the car could be brought to a dead stop would depend upon the rate of speed, and at 8 miles an hour "it would take hold right now and stop right now." By that he did not mean that the car would stop instantly. Another motorman testified:

"If you give it a good nip of air you can feel your brakes take hold the minute you give it air.

"Q. How many seconds would that be? A. You would not run over a foot or a foot and a half; you can feel your brakes take hold."

Then he was asked:

"Can you tell me how long it would be in point of time, from the time you saw it, to make a stop, in throwing your air over; how long it would take to throw your air over? A. A half a second."

A second is an appreciable length of time. A man trained to act quickly in emergency with appliances of instantaneous application might well apply them and begin to stop, as stated by the witness, in a fraction of a second, so that they would take hold while the car would run a foot or two. We are not prepared to say, on this evidence, that the car could not have been stopped before it ran upon Griggs. It is a matter of common knowledge that the wheels of a car are further back than the stand of the motorman, who saw him 15 feet away, so that the distance the wheels would have to travel after the man was seen would be considerably more than 15 feet. The motorman's speed did not slacken until after the man was struck, according to his own testimony, and then he stopped the car within 10 feet. If, after the appliance was on, he stopped in 10 feet after striking the man, he could have stopped within that distance before striking him after the appliance was on. According to the testimony of the witness, it looks as if he had sufficient time to apply and cause his brakes to take hold before the wheels got within 10 feet.

However, it was not necessary for the jury to find the car could have been stopped after Griggs was seen before striking him. If by the exercise of ordinary care the motorman could have seen him in time to save his life, he was negligent. The rule of law is not disputed that it is the duty of a motorman, driving a street car upon a street such as this, to keep a lookout ahead for persons who may be upon the track, in order to avoid injuring any such person. Deschner v. Railway Co., 200 Mo. loc. cit. 329, 98 S. W. 737; Riggs v. Railroad, 216 Mo. loc. cit. 319, 115 S. W. 969; Sluder v. Transit Co., 189 Mo. loc. cit. 136, 88 S. W. 648, 5 L. R. A. (N. S.) 186; Windle v. Railroad, 168 Mo. App. loc. cit. 603, 153 S. W. 282, and cases cited. In some of those cases it is held that ordinances enacted in many cities, requiring motormen in such case to keep a vigilant watch ahead to prevent injuring persons, are...

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