Grout v. Central Electric Railway Company

• Decision Date: 03 June 1907
• Citation: 102 S.W. 1026,125 Mo.App. 552
• Parties: JAMES H. GROUT, Respondent, v. CENTRAL ELECTRIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

102 S.W. 1026

125 Mo.App. 552

JAMES H. GROUT, Respondent, v. CENTRAL ELECTRIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 3, 1907

Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

John H Lucas and Frank G. Johnson for appellant.

(1) The court erred in submitting the cause to the jury. The evidence conclusively establishes the contributory negligence of the plaintiff, and the court should have so declared as a matter of law. Watson v. Railway, 133 Mo. 246; Moore v Railway, 176 Mo. 246; Cogan v. Railway, 101 Mo.App. 179; Fanning v. Railway, 103 Mo.App. 151; Burris v. Transit Co., 102 Mo.App. 87; Felling v. Railway, 106 Mo.App. 162; Deane v. Transit Co., 192 Mo. 575; Walker v. Railway, 193 Mo 453; Schmidt v. Railway, 191 Mo. 215; Sanguinette v. Railway, 95 S.W. 386; Roenfeldt v. Railway, 180 Mo. 564; Guyer v. Railway, 174 Mo. 344; Petty v. Railway, 179 Mo. 666. (2) The court erred in giving instructions for the plaintiff. They both ignored and enlarged the issues tendered by the pleadings, were unsupported by the evidence, contradictory and misleading. Number 1. Ignores issues tendered by pleadings. Thomas v. Babb, 45 Mo. 386; Barrie v. Transit Co., 102 Mo.App. 93, 4. Assumes controverted facts. Vannatta v. Railroad, 133 Mo. 21. Number 2. Ignores issues. Barrie v. Transit Co., 102 Mo.App. 93; Rice v. Wabash, 92 Mo. l. c. 40; McDonald v. Railroad, 32 Mo.App. 75; Wilburn v. Railroad, 36 Mo.App. 209, 12. Number 4. No evidence to warrant same. Brazis v. Transit Co., 102 Mo.App. 228; Hartpence v. Rogers, 143 Mo. 634; McGonigle v. Daugherty, 71 Mo. 261. Number 3. Misleading. Clark v. Kitchen, 52 Mo. 316; Prince v. Compress Co., 112 Mo.App. 66; James v. Railroad, 107 Mo. 484. Number 5.--Misleading. James v. Railroad, 107 Mo. 484; Higgins v. Railroad, 95 S.W. 866; Vannatta v. Railroad, 133 S.W. 34. Number 7. (a) Substitutes an entirely different cause of action. McQuillin's Instructions, page 51. (b) Conflicting and contradictory of other instructions. Stevenson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 512; Wilmot v. Railroad, 106 Mo. 549. (c) No evidence on which to base same. No citations. (d) Ignores contributory negligence. No citations. No. 8 (a) Ignores defendant's theory. Kolb v. Transit Co., 102 Mo.App. 151; Culbertson v. Railroad, 140 Mo. 60. (b) Unsupported by Evidence. No citations. (c) Conflicting and contradictory. Spillane v. Railroad, 111 Mo. 565; Fath v. Railroad, 105 Mo. 549. (d) Misleading. Shoe Co. v. Shepherd, 96 Mo.App. 702.

Rozzelle, Vineyard & Thacher for respondent.

(1) The court did not err in overruling defendants demurrer to the evidence. Cole v. Railway, Mo. Court Reporter, vol. 1, number 6, p. 220; Latson v. Transit Co., 192 Mo. 458; Rectenwald v. Railway, Mo. Court Reporter, vol. 1, number 6, p. 223; Meng v. Railroad, 108 Mo.App. 553. (2) The instructions asked by plaintiff and given by the court are correct declarations of the law. Instruction number 1: Kleiber v. Railroad, 107 Mo. 247. Instruction number 2: Heinzle v. Railroad, 182 Mo. 547. Instruction number 3: Railroad v. Gallagher, 68 Kas. 428; Meng v. Railroad, 108 Mo.App. 553. Instruction number 4: Britton v. St. Louis, 120 Mo. 446; State v. Hilsabeck, 132 Mo. 348; Hartpence v. Rogers, 143 Mo. 634. Instruction number 7: Guenther v. Railroad, 108 Mo. 21; Bindbeutel v. Railway, 43 Mo.App. 463-476; Cole v. Railway, Mo. Court Reporter, vol. 1, number 6, p. 220; Rectenwald v. Railway Mo. Court Reporter, vol. 1, number 6, p. 223; Instruction number 8: Guenther v. Railroad, 108 Mo. 21.

OPINION

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff recovered judgment in the sum of one thousand dollars and the case is here on defendant's appeal. The injury occurred at the intersection of Tenth street and Tracy avenue in Kansas City at about noon on August 21, 1902. The course of Tenth street is east and west and that of Tracy avenue north and south. The former street is sixty feet wide, and at the time in question, defendant was operating thereon a double-track line of street railway. The cars in use were propelled by electricity and were provided with handbrakes only.

Plaintiff and a companion were driving south on Tracy avenue in a light spring wagon drawn by one horse. When they reached the north property line on Tenth street, they looked in both directions for cars, saw none approaching from the east and observed one coming from the west on the south track. The day was clear and there was nothing to obstruct the view, but the look given by plaintiff to the approaching car was of the most cursory character. He observed that it was about at the intersection of Forest avenue, the next street west, and that it was not going to stop at that crossing, but did not perceive that it was approaching at high speed and assuming that he had time to clear the crossing in safety, paid no further attention to it and did not know of his danger until an exclamation from his companion warned him that a collision was imminent. At that moment, his horse was on the south track, and plaintiff says he looked up and observed the car coming at very high speed--estimated by him at forty miles per hour. He endeavored to clear the crossing by urging the horse, then going at a slow trot, into a faster gait; but his efforts were unavailing and the collision followed. The car struck the rear wheels of the wagon and plaintiff was precipitated to the street with great violence, and sustained severe injuries. The distance between Forest and Tracy avenues is three hundred and fifteen feet, and the rate of speed maintained by the car in traversing it is variously estimated by the witnesses for plaintiff at from fifteen to forty miles per hour. From their testimony, it appears that no effort was made by the motorman to check speed, until the collision occurred.

The negligence charged in the petition is that the defendant "negligently, carelessly and unskillfully and without warning to plaintiff, ran said car upon and and against a certain wagon at the time being driven by plaintiff and upon which wagon plaintiff was at the time seated, and brought said car into collision with said wagon with great force and violence, causing plaintiff to be thrown from the seat to the hard pavement below, causing him severe and permanent injuries. . . . that the place where the collision occurred is a portion of Kansas City thickly populated, where many pedestrians and vehicles are constantly passing to and fro, and especially at the time of day when the collision occurred. . . . that the grade of Tenth street beginning at a point about one hundred feet east of its intersection with Forest avenue, changes and forms a steep incline running down to Tracy avenue; that the defendant . . . . was at the time running the car at a high, unreasonable and dangerous rate of speed under the particular circumstances in question; that the defendant . . saw, or by the exercise of ordinary care and diligence could have seen the plaintiff in a position of imminent peril upon, approaching and in close proximity to the track upon which said car was running in time to have slackened the speed of said car or to have stopped the same and thus prevented the collision and consequent injuries to plaintiff, had the defendant . . . been operating and running said car at a reasonable rate of speed under the particular circumstances in question, and had the said defendant. . . . exercised ordinary care and diligence to see the plaintiff in his position of imminent peril, but that the defendant. . . operating said car, as aforesaid, negligently, carelessly and unskillfully ran and operated said car at a dangerous and unreasonable rate of speed under the particular circumstances, and negligently, carelessly and unskillfully failed and neglected to slacken the speed of said car or to bring the same to a stop and prevent said collision and injuries; that by reason of the carelessness and negligence of defendant. . . . plaintiff was thrown from the wagon which he was driving," etc. The answer, in addition to a general denial, contains a plea of contributory negligence.

The evidence of defendant tends to show that in running from Forest avenue to Tracy avenue, the speed of the car did not exceed ten or eleven miles per hour, that as the crossing in question was neared, the motorman rang the bell and, when he saw plaintiff approaching the track, rang it more violently to attract his attention; that plaintiff, who appeared to be absorbed in conversation with his companion, then looked up, observed the car, checked the horse as though to stop, and then, apparently changing his mind, urged the horse forward in an effort to cross ahead of the car; that on observing this conduct of plaintiff, the motorman applied the brakes with all possible celerity and succeeded in checking the speed of the car, but by his utmost efforts, could not avoid the collision. At the conclusion of the evidence, defendant requested the court to peremptorily direct a verdict in its favor and now complains that error was committed in the denial of its request.

Adopting as we must, the statement of facts most favorable to the cause of action asserted, it is apparent that the manner in which the car was being operated towards the crossing in question was negligent. To run a car at a rate of speed so high along a street in a populous part of the city, without reducing speed at street intersections, is not only negligence but is a wantonly reckless act. The supreme and appellate courts of the State have declared repeatedly that street railway companies in the...