Haffey v. Metropolitan St. Ry. Co.

• Decision Date: 01 February 1911
• Citation: 154 Mo. App. 493,135 S.W. 987
• Parties: HAFFEY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

135 S.W. 987

154 Mo. A. 493

HAFFEY v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

February 1, 1911.

Rehearing Denied April 3, 1911.

1. STREET RAILROADS (§ 114)—INJURY TO PEDESTRIAN — NEGLIGENCE — EVIDENCE—SUFFICIENCY.

Evidence held insufficient to show that negligence of a motorman whose car struck a pedestrian proximately caused the latter's injury.

2. STREET RAILROADS (§ 93)—PEDESTRIANS— RIGHTS OF MOTORMAN.

A motorman can assume that a pedestrian approaching the track obliquely in the same general direction as the car is moving will not endanger himself.

3. STREET RAILROADS (§ 103)—INJURY TO PEDESTRIAN —LAST CLEAR CHANCE.

The "last clear chance" doctrine does not apply to a street car's collision with a pedestrian, if the motorman was not warned by the pedestrian's demeanor that he was about to endanger himself.

4. STREET RAILROADS (§ 101)—INJURY TO PEDESTRIAN —CONTRIBUTORY NEGLIGENCE.

A pedestrian struck by a street car cannot recover though the motorman was negligent, if the injury could have been avoided by the pedestrian's use of care for his own safety.

5. STREET RAILROADS (§ 114)—INJURY TO PEDESTRIAN — CONTRIBUTORY NEGLIGENCE — EVIDENCE—WEIGHT.

Evidence held to show that a pedestrian was struck by a street car through his own negligence.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Patrick Haffey against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

John H. Lucas, for appellant. Guthrie, Gamble & Street, Boyle & Howell, and A. F. Smith, for respondent.

BROADDUS, P. J.

This is an action by plaintiff to recover damages for injuries sustained by being struck by one of defendant's street cars.

The injury was sustained on the night of April 7, 1908, on Kansas avenue, between Fourth and Fifth streets, in Armourdale, Kan. At about 8 o'clock p. m., while the street was well lighted, plaintiff started from the north side of said street to cross over to the opposite side. In going he traveled in an oblique direction. He stated that when he left the sidewalk he looked in both directions, and he saw no cars coming. He then proceeded in the direction indicated, without looking for approaching cars. In the meantime a car was coming along the street from the east at the rate of speed of 15 miles an hour. Plaintiff and the car were both traveling west. It so happened that just before plaintiff got upon the defendant's track the fender passed him, and he was struck by the bumper of the car and injured. No warning of any kind was given to plaintiff of the approach of the car, and no effort was made to check its speed until after plaintiff collided with it. Bystanders testified that plaintiff's manner as he approached the track indicated that he was not mindful of his surroundings. The judgment was for plaintiff, from which the defendant appealed. The defendant introduced no evidence and submitted a demurrer to plaintiff's case, which the court overruled. The appeal is taken mainly on the theory that plaintiff made out no case.

It is contended that the facts do not show that the motorman in charge of defendant's car was negligent. It appears to us the defendant's position is well taken. Notwithstanding the motorman had been looking, was he compelled under the circumstances to have taken notice that plaintiff was going to place himself in the line of danger? Ordinarily, when a person is seen to approach the tracks of a street car company in an oblique direction while a car is also approaching and coming from the same direction, the supposition is that he intends the car to pass before he goes upon the track,...