Haggard v. Union Depot Bridge & Terminal R. Co.

• Decision Date: 05 October 1923
• Docket Number: No. 23570.,23570.
• Citation: 302 Mo. 19,256 S.W. 783
• Court: Missouri Supreme Court
• Parties: HAGGARD v. UNION DEPOT BRIDGE & TERMINAL R. CO.

256 S.W. 783

302 Mo. 19

HAGGARD v. UNION DEPOT BRIDGE & TERMINAL R. CO.

No. 23570.

Supreme Court of Missouri, Division No. 1.

October 5, 1923.

Rehearing Denied December 31, 1923.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Leo C. Haggard against the Union Depot Bridge & Terminal Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cyrus Crane and Kenneth MeG. De Weese, both of Kansas City, for appellant.

Battle McCardle, of Kansas City, for respondent.

JAMES T. BLAIR, J.

This is an appeal, from a judgment for damages for injuries respondent received when one of appellant's street cars, upon which he was acting as both motorman and conductor, collided with another car. The accident occurred in North Kansas City, which is on the north side of the Missouri river and separated from Kansas City by that stream. The terrain there is low and flat for more than a mile from the north bank of the river. In the fall and spring dense fogs are of frequent occurrence in these bottoms. North Kansas City is platted so as to correspond, in a measure, with the streets and avenues of Kansas City. The road or street which runs north from Kansas City across the Interurban bridge is called Grand avenue. Along it are laid the double tracks of the K. C. C. C. & St. J. Ry., an electric line. Fourteenth street, in North Kansas City, runs east and west and crosses Grand avenue at a point a quarter of a mile or more north of the Missouri river. Troost avenue runs north and south, parallel to Grand avenue, and is a half mile or more east of it. Armour road runs east from a point on Grand avenue nearly a half mile north of Fourteenth street and crosses Troost avenue, with a northing at that point of a few hundred feet—about one block. The fourth side of the trapezoid is that part of Grand avenue between its intersection with Fourteenth street and that with Armour road. Grand avenue and Troost avenue are the parallel sides. Appellant operates its cars on tracks which lead out of Kansas City and across the bridge, then pass around the sides of the figure described. Double tracks are used on Grand avenue and Fourteenth street, and single tracks on Troost avenue and Armour road, except that tracks at Oak street, a block east of Grand avenue on Armour road, could be used for purposes of passing cars. There was a passing place at the intersection of Troost avenue and Armour road. In addition, there was a switch on Armour road which was occasionally used. The length of the run was between four and five miles, and what was called "the round trip" was twice that. Appellant's car barns were situated near Grand avenue and Armour road.

At the time respondent was injured, five cars were operated by appellant. These were "one-man cars"; i. e., one man acted as both motorman and conductor. Under the schedule in force, the first car (on the morning of September 17, 1918, in charge of Haggard) left the car barn at 5:35 or 5:38. The cars were "spaced" about 12 minutes apart. Connington took out the second car. After the five cars in use began their runs, some of them began to run around the loop in one direction and some in another. The result of this was that they were required to pass each other on the trip around the loop either on the double tracks or at the place or places provided for passing at points along the single track part of the loop line. The evidence tends to show that, other than the schedule furnished, appellant had adopted no rule or system whereby the operator of one car could tell where the other cars were, except as he could see them as they approached or passed him. In daylight, in the absence of fog, snow, heavy rains, and the like, the cars could be seen from one end of each leg of the loop to the other. In the fogs, which frequently covered the bottoms, cars could be seen but a short distance. These fogs would be very dense for a space, and then partial "breaks" would occur in them. At some places, in such fogs, cars would be visible but a few feet, and at others they could be seen for 75 or 100 feet. On the morning and late afternoon runs, the traffic was heavy, and quite frequently the men were not able to make the schedule. The presence of fogs had a like effect. The tracks were not so laid that vehicles, of which there does not seem to have been many, could pass along, across or over them very conveniently. The evidence tends to show that the men were frequently behind time on their runs. They adopted or fell into a practice of designating the car which first left the barn as the "leader" of the next car to leave and of calling the second car the follower of the first, and so on. The evidence tends to show that these names were adhered to though the "leader" and its "follower" soon began running around the loop in opposite directions. As a result of the cars almost customarily getting late in the mornings by reason of the early heavy traffic, fogs, etc., a practice arose whereby the operators of the cars, at least of a leader and its follower, would agree upon the point at which they would meet and pass each other. There was also a sort of practice or understanding among the men that when a car became so late that "it got on the other fellow's time," it would miss one trip and start in again. Some witnesses said this was done when a car got 10 minutes late. The evidence tends to show this was not strictly followed. In operating on schedule, if on time or about on time, or under the agreements as to passing places when late, the follower would await the appearance of its leader before starting in on a single track. When his leader appeared, that was understood to give a clearance to the follower to the next passing place, or to the agreed place of meeting, as the case might be. Appellant did not institute these practices, and they were not invariably followed. They were devices of the men to take care of conditions which arose with much frequency, and had been followed, in the manner stated, for some time. If a car was late, but not so late as to get on the time of another car, it strove to make up its time and avoid losing a trip. The average rate of speed was reduced about one-half in fogs, or to 8 or 10 miles per hour.

On the morning of September 17th, when respondent was injured, the fog was dense and the cars were all 8 or 10 minutes late. Respondent and Connington had agreed to pass at Armour and Oak, near Armour and Grand avenue. Shore's car was late and was out of place. Respondent was completing his third trip. Shore left Fourteenth and Grand just ahead of respondent and proceeded east. Respondent followed on the same track. At Fourteenth and Troost, Phenix passed respondent. He went west on Fourteenth and respondent went north on Troost. At Troost and Armour road respondent turned west and started along the single track for Armour and Oak, the end of the double track just east of Grand avenue, and the agreed meeting point with Connington. In the meantime Phenix had proceeded along Armour road to Oak and passed Connington there and had begun another trip south on Grand avenue. He Was late, as stated, and should have passed Armour and Oak before this. As soon as Phenix's car cleared, Connington moved out upon the single track and started along Armour road for Troost avenue. About a block west of Troost the collision occurred. The evidence tends to show that in the dense fog which enveloped him, Connington mistook Phenix's car for that of respondent. This meant to him that he had kept his agreement and that his leader had come out of the single track and that he was entitled to go in upon it. This he did, with the result stated. Respondent says his car was moving 8 or 10 miles per hour when he first descried Connington's head light; that when he was first able to see it, it was 10 or 12 feet away. Connington testifies he could see respondent's car some 75 feet away. According to both of them, they made every effort to stop, but did not accomplish it. The testimony is that there was no method, rule, or system whereby one could tell where the other cars were on a morning like this when the cars got late.

The negligence alleged is the failure of appellant to prescribe rules, methods, or system for the safe operation of the cars in the circumstances shown in this case. The...