Hackleman v. Kansas City Rys. Co.
| Decision Date | 01 December 1919 |
| Parties | VIRGIL L. HACKLEMAN, Respondent. v. THE KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appear from Jackson Circuit Court.--Hon. Allen Southern, Judge.
Judgment affirmed.
Bellemere & Langsdale and Cliff Langsdale for resepondent.
R. J Higgins, Ben T. Hardin, Roscoe P. Conkling and Charles L Carr for appellant.
Plaintiff recovered a verdict and judgment in the sum of $ 1000 for personal injuries sustained by him as the result of a collision at the intersection of 4th Street and Grand Avenue, in Kansas City, between one of defendant's street cars and a fire truck belonging to the municipality of Kansas City, Missouri.
At the time of the accident there was in force an ordinance of the city providing that "the fire department shall have the paramount right-of-way over and through all streets, avenues and alleys when going to a fire," and that when such "fire apparatus going to a fire or answering an alarm for fire, shall approach close to another car upon any street railroad track in Kansas City, it shall be the duty of the person in charge of such car to cause such car to come to a full stop and so remain until after such . . . fire apparatus has fully passed by such car or has come to a full stop." These ordinances were pleaded in plaintiff's petition.
Defendant insists that the court erred in giving plaintiff's instruction No. 1, for the reason that the instruction assumed that the fire apparatus with which its car collided was going to a fire or answering an alarm for fire and that it "fails to submit to the jury the issue as to whether or not the motorman of appellant's car knew, or by the exercise of ordinary care should have known, that the fire truck involved in the accident was proceeding to a fire or answering a call to a fire." There is no evidence, or inference from the evidence, that the fire truck in question was not going to a fire and, therefore, it was harmless for the instruction to assume this fact. The case was tried on both sides on the theory that it was the absolute duty of the motorman to stop the car if he knew, or by the exercise of ordinary care could have known, that the fire apparatus in question was approaching the crossing, regardless as to whether the motorman knew it was going to a fire. Plaintiff introduced evidence tending to show that the fire truck was ringing a loud bell for several blocks before it reached the crossing and that the motorman was otherwise notified of the approach of the fire truck. The motorman testified that there was a building erected on the corner and he was unable to see down 4th Street until he arrived at the property line and at that time the apparatus was twenty or thirty feet from Grand Avenue, approaching the same (the street car was running upon the latter street); that as soon as he saw the apparatus approaching he did all he could to stop but was unable to avoid the collision. There was no claim that the motorman knew or ought to have known of the presence of the fire truck but failed to stop because he did not have reason to believe it was going to a fire. In defendant's instruction No. 2 as offered by it, the jury were told that under the ordinances the fire wagon had preference over defendant's street cars on the street of Kansas City but it is not the duty of the motorman to know or to anticipate that a fire truck is approaching a street car crossing at any given time and place, nor is he expected to know that there is a fire at any particular place, and if the motorman in this case exercised reasonable care to stop his car after he knew that the fire truck was approaching Grand Avenue, then he did all the law required him to do; "and if the jury believe from the evidence in this case that when the motorman in charge of the car first had knowledge that the fire truck was approaching in 4th Street, the street car and fire truck were so close together that a collision was inevitable, and that the motorman was unable with the appliances at his command to prevent the collision, then plaintiff is not entitled to recover." The case must be submitted in this court on the same theory upon which it was tried in the lower court. [Heller v. C. &. A. Rd. Co., 209 S.W. 567.] However, we think that plaintiff's instruction was proper in any event. Uncontrolled fire is the common enemy and if not curbed often results in great disaster to life and property. It would not do to allow a motorman to say "I had reason to believe that a fire apparatus was coming but I did not think it was going to a fire" when the apparatus was actually going to a fire but was impeded or prevented from so doing by the motorman not stopping his car. The ordinances give the fire apparatus the right-of-way when going to a fire. This right-of-way is an absolute one (Duffghe v. Met. St. Ry. Co., 96 N.Y.S. 324, 325)...
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