Haines v. Kansas City Rys. Co.

• Citation: 203 S.W. 631
• Decision Date: 20 May 1918
• Docket Number: No. 12754.,12754.
• Parties: HAINES v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

203 S.W. 631

HAINES v. KANSAS CITY RYS. CO.

No. 12754.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by C. G. Haines against the Kansas City Railways Company. Verdict for plaintiff was set aside on a motion for a new trial, and he appeals. Judgment awarding a new trial affirmed.

Ed E. Yates and Claud T. Goble, both of Kansas City, for appellant. Clyde Taylor, Mont T. Prewitt, and Charles A. Stratton, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff seeks damages on account of personal injuries arising from a collision of the defendant's street car with plaintiff's wagon as he was crossing the track at a street intersection. The cause of action was based upon a violation of the humanitarian rule, the petition alleging that plaintiff, oblivious of his peril, was either upon or approaching near to the track, and the operatives of the car ran against and injured him when they knew, or by the exercise of ordinary care should have known, that he was upon or approaching said track, in a position of peril, and oblivious of danger, in time, by ordinary care, to have avoided the collision, but failed to do so. A trial resulted in a verdict for plaintiff in the sum of $2,500, which the court set aside on a motion for new trial, the ground of the court's action being error in plaintiff's instructions, whereupon the plaintiff appealed.

The case presented is that the motorman observed, or should have observed, plaintiff's danger and obliviousness not only when upon the tracks, but also when plaintiff was approaching the tracks. And the evidence before the jury raised the issue of whether the motorman should have seen that plaintiff was going toward the tracks unconscious of danger (and therefore manifesting every intention of going immediately across), or whether the motorman, although he saw plaintiff approaching the track, was not negligent because, apparently, plaintiff would stop, and the danger did not arise until the plaintiff suddenly struck his team with the lines and attempted to cross in front of the car, when the motorman did his best to stop, but could not do so until the car had gone a foot or so beyond the point where the wagon was struck. The issue thus presented being very sharp, to say nothing of the question of negligence being very close, it became a matter of the most vital importance to determine whether the motorman ought to have known that plaintiff, in approaching the track, was going to cross immediately and regardless of the on-coming car. In other words, it was vitally necessary to have the jury determine whether the plaintiff's obliviousness was apparent to the motorman, or was so manifest as that he knew or ought to have known of it, and should have commenced operations at once to avoid a collision. But, although the petition alleged that the motorman knew or ought to have known that plaintiff was oblivious, and although the evidence made the question of whether the motorman knew or should have known plaintiff was oblivious a vital issue in the case, yet plaintiff's instructions do not submit that question to the jury. It is left out of the first, which...