Haller v. Kansas City Public Service Co.

• Decision Date: 20 May 1929
• Docket Number: No. 16634.,16634.
• Citation: 17 S.W.2d 392
• Parties: HALLER v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

17 S.W.2d 392

HALLER v. KANSAS CITY PUBLIC SERVICE CO.

No. 16634.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

"Not to be officially published."

Action by Martha Haller against the Kansas City Public Service Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles L. Carr, E. E. Ball and Harding, Murphy & Tucker, all of Kansas City, for appellant.

Harry G. Kyle and Walter A. Raymond, both of Kansas City, for respondent.

BARNETT, C.

This is a suit for damages for personal injuries. The facts most favorable to plaintiff are as follows: Plaintiff was in a Ford automobile. There were several people in the back seat, but the plaintiff sat in the front seat on the right-hand side with a child in her lap. The driver of the car, Mrs. Neiswander, sat on the left-hand side. Mrs. Neiswander drove the car on Garfield avenue in Kansas City, Kan., to Twenty-Seventh street, and then turned south on Twenty-Seventh street and drove to the home of Mr. and Mrs. McClelland, which was on the west side of the street. Mrs. Neiswander by mistake drove a short distance past the sidewalk which led from the street to the McClelland home. She stopped to let Mr. and Mrs. McClelland and children out of the car, who were insisting that the other occupants of the car come into the house; but the others evidenced some vacillation in response to this invitation, and as a result the occupants sat in the car for some 4 or 5 minutes. There was evidence that 19 inches of snow had fallen within the week before April 4, 1928, the day when plaintiff was injured. Defendant's street car track ran down Twenty-Seventh street, and defendant had swept and thrown the snow from the tracks along the curbing of the street at the place where the automobile was stopped. The snow was piled up between the street car track and the curb line about 2½ feet high, where it had drifted and frozen. The driver of the car testified that she drove as close as she could to the curb line, but was up against the snowdrift.

Mrs. Neiswander testified that when she stopped the car she got out on the fender and looked to see if her car was clear of the street car track, and she thought it was far enough away for a street car to pass; that her car was about a foot from the track. While the occupants of the car were talking and the car was standing still headed south, a street car approached from the north and struck the automobile, which resulted in an injury to plaintiff. No bell or warning was sounded. The motorman testified that he saw the automobile when he was about 100 feet away, that at that time his car was going about 8 miles per hour, but that, as he approached the automobile, he increased his speed to about 10 or 12 miles per hour. He testified that he could have stopped the car within 40 or 50 feet, and that his car extended out over the rails a distance of about 18 or 19 inches. On cross-examination, it developed that the motorman had testified, when his deposition was taken, that he could have stopped the car in at least 20 feet. A skilled witness testified for plaintiff that the car could have been stopped in 25 to 50 feet. The plaintiff testified that she saw the street car when it was about 150 feet away; that she could not see the left rear wheel from where she sat; that she thought the automobile was about a foot or a foot and a half or maybe 2 feet from the track, but did not know the distance. She testified that she did not get out of the car at any time before the accident and after the automobile stopped. She was asked why she did not get out of the car, and she answered that she "could not very well get out, the way the car stood on account of the snowdrift," and did not think she could have gotten the door open, that she did not ask any one to let her out of the car, and that she did not get out of the automobile when it stopped to see how near it was to the street car track.

In the answer, the defendant denied that the plaintiff was injured as set forth in her amended petition, and alleged that the injuries were not the result of any negligence on the part of defendant, but were the result of her own negligence. The answer pleaded the law of Kansas as follows:

"These defendants further state that at all times referred to in plaintiff's amended petition, the established law of the State of Kansas, as set forth in Marple v. Topeka Railway Company, 85 Kan. 699, 118 P. 690, and in Maris v. Lawrence Railway & Light Co., 98 Kan. 205, 158 P. 6, restricted the liability of defendants to "liability only in case the motorman might have avoided the accident after he actually did see the plaintiff in a position of peril." That in an action for injuries from a collision such as the one set forth in plaintiff's amended petition, "the doctrine of last clear chance does not apply where defendant's negligence is predicated upon the theory that defendant should have discovered the plaintiff's danger in time to have avoided the injury."

That the law as laid down in Gilbert v. Missouri Pacific Railway Co., 91 Kan. 711, 139 P. 380, is declared to be that "the doctrine of last clear chance is not available to a person injured from a collision at a crossing where he actively disregarded his own safety up to the last moment."

"That by reason of the law of the State of Kansas as applied to the facts pleaded in plaintiff's amended petition, there is no liability on defendants for injuries complained of in plaintiff's petition."

The plaintiff pleaded the law of Kansas as follows:

"Further answering plaintiff states that there is now and at all times mentioned herein was a statute of the State of Kansas in full force and effect which said statute is found in Revised Statutes of Kansas, 1923, and is as follows:

"`77-109. Common Law. The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.'

"Further answering plaintiff states that it is not the law of the State of Kansas that the last chance doctrine applies only in case the injury might have been avoided after the plaintiff's position of peril was actually seen and it is not the law of the State of Kansas that the last clear chance doctrine is not available to a person who has actively disregarded his own safety up to the last moment;

"Plaintiff states that the law of Kansas as declared by the Supreme Court of the State of Kansas which is and was the Appellate Court of general jurisdiction in said state is as follows, to wit: Atherton v. Topeka Ry. Co., 107 Kan. 6, 190 P. 430.

"(7) Counsel for the defendant frankly concede the doctrine of last clear chance as frequently declared in this state applies when the defendant actually finds the plaintiff in a condition of peril, or by the exercise of proper care should so find him his own negligence at that time having ceased. But it is argued with much force, buttressed with numerous authorities that no duty arises in such cases until the actual discovery of the perilous condition. However, the rule is so firmly fixed in this state and so thoroughly supported by the great weight of authority that it cannot now be changed. Tarter v. Missouri, K. & T. Ry. Co., 119 Kan. 365, 367, 239 P. 754.

"It is a rule of law which makes the defendant liable when the plaintiff through his own negligence has placed himself in a place of danger from which he cannot extricate himself and when the defendant saw or should have seen the situation of the plaintiff in time to avoid injuring him." Muir v. Receivers of K. C. Rys. Co., 116 Kan. 551, 227 P. 536.

"(554) Upon the facts of the case both parties were manifestly negligent. The court instructed the jury that as a matter of law the plaintiff was negligent in driving upon the street car track as he did without taking proper precautions for his safety, and that his negligence would bar a recovery unless it was shown that after the truck reached the position of danger from which plaintiff could not extricate himself, the defendant's motorman, when he saw or should have seen plaintiff's peril did not exercise reasonable care to avoid injuring plaintiff, saying, that if he saw or in the exercise of ordinary care and prudence ought to have seen the plaintiff's position of peril in time to have avoided the injury, and failed to do so, the plaintiff might recover. The principal question submitted is: Did the motorman fail to make reasonable efforts to avoid injuring the plaintiff after he discovered or should have seen the plaintiff's peril, and when the conditions were such that he could not help himself? In this situation the doctrine of `the last clear chance' was plainly applicable. See, also, Morlan v. Hutchinson-Hyatt, 116 Kan. 86, 91, 225 P. 739."

Plaintiff's main instruction was as follows:

"The court instructs the jury that if you find and believe from the evidence that on April 4th, 1926 about 8:30 P. M. plaintiff was riding as a passenger in an automobile which was being driven and operated south on 27th street, if so, and that when said automobile reached a point directly in front of 1872 North 27th Street, a public street in Kansas City, Wyandotte County, Kansas, if so, it was brought to a stop in the west roadway mentioned in evidence, if so, and that the rear end of said automobile on the left hand side was near the west rail of said south bound car tracks, if so, and that there was not room for a street car to pass on said track, if so, and that said automobile remained stationary at said place, if so, and that at that time the agents and servants of the...