Harrington v. Dunham

• Decision Date: 16 February 1918
• Docket Number: No. 18831.,18831.
• Citation: 273 Mo. 414,202 S.W. 1066
• Parties: HARRINGTON v. DUNHAM et al.
• Court: Missouri Supreme Court

202 S.W. 1066

273 Mo. 414

HARRINGTON v. DUNHAM et al.

No. 18831.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Rehearing Denied April 9, 1918.

Motion to Transfer to Court in Banc Overruled April 9, 1918.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

Action by M. J. Harrington against R. J. Dunham and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

The plaintiff sued for injuries received by collision with a street car operated by defendants. There was a verdict for the defendants, and the plaintiff appealed. The place where the collision occurred was at the intersection of Blue avenue and the defendants' street railway tracks at a point between Kansas City and Independence. At that point Blue avenue runs practically east and west, and two parallel street car tracks cross it, running north and south. Blue avenue was 100 feet wide, with a macadamed track down the center 26 feet wide. Along the east side of the street car tracks, and on the south side of Blue avenue, was situated the power house of the street car company, 66 feet in length north and south, and 33 feet wide east and west. The west side of the power house was about 6 feet east of the east rail of the east track, and the north front of the power house, being 50 feet from the center of the avenue, was about flush with its south line. About half way between the northwest corner of the power house and the center of the street was a pole on which was posted in large letters, "STOP." This was called a safety stop, and indicated that cars going north were required to stop at that point before crossing the street. The collision occurred where the east track crosses the macadam portion of the avenue, after the colliding car had passed this safety stop.

The evidence shows that the plaintiff was driving a heavily loaded moving van westward along the center of the avenue upon the macadam portion of it. He sat upon a seat in the front part of the van, so that his view was unobstructed by his load. He testified that before he got to where the power house shut off his view he looked south to see if a car was approaching from that direction, and saw none. He then drove on until the power house obstructed his view to the south, so that he could not see an approaching car until he had cleared the power house. He then looked south, and saw a car coming from that direction, a little beyond the south end of the power house. There was nothing in the appearance of the car, he said, to indicate it would not stop at the safety stop according to custom. He was well on the track before he discovered that car was not going to stop, and then he endeavored to get out of the way, but the car struck his wagon and caused serious injuries, for which he brought the suit.

Several witnesses testified that it was the custom of the north-bound cars to stop before crossing the street at that point, in obedience to the sign indicated by the safety stop. Defendants offered no evidence to controvert them, though they did contend that the place was a regular stopping place to receive and discharge passengers. Plaintiff's evidence tended to show the stops were regularly made there when no passengers got on or off. It further shows, and it is conceded by defendants, that, in approaching the street car tracks from the east, at a certain distance from the tracks the power house shut off the view of the tracks to the south, and a person could not see them again until quite close to the track. The distance from the track where the view is first shut off in that way was stated by the defendants' engineer to be 55 feet. Then from the time the view of the plaintiff, approaching from the east, would be cut off by the power house, until he got past it so that he could look up the track, was such that a car would have time to come a considerable distance.

Some witnesses swore that there were two men in the motorman's box at the time, and one seemed to, be teaching the other how to run the car. The motorman swore, and the defendants produced some corroborating evidence, to show that he attempted to stop the car according to custom, when "the overhead blew out" so that he could not control his car. There was considerable evidence contradicting his statement—evidence which tended to show that he made no attempt to stop until the wagon was upon the track. His evidence indicates that he did not take the proper precaution to make the regular stop, and could not have made it in any event after he began the attempt, and only used his emergency expedient of reversing the engine after he saw that he was likely to strike the plaintiff at a point in the street 50 feet north of where he should have made the safety stop. Respondents do not seriously question that there was sufficient evidence for the jury tending to show the custom to stop in obedience to the safety stop sign, and whether or not defendants were negligent in that regard was submitted to the jury by appropriate instruction.

John D. Strother, of Independence, and Ingraham, Guthrie & Durham and Hale Houts, all of Kansas City, for appellant. Clyde Taylor, of Kansas City, and L. T. Dryden, of Independence, for respondents.

WHITE, C. (after stating the facts as above).

I. Since appellant claims that erroneous instructions were given relating to contributory negligence, it will be necessary to consider more closely the facts upon which those instructions bear.

Plaintiff testified that as he approached from the east, before he got near the power house, and when he was at a point where he could see the tracks southward beyond it, he looked in that direction and saw no car. He drove on, and the power house shut off his view of the track until he was so close to it that his horses already were stepping upon it. Then he looked southward, and saw the car approaching a little beyond the south end of the power house. The measurement of distances by witnesses for both the plaintiff and the defendants corroborated that statement, and show that his horses would have to be about on the track before the driver, sitting on the wagon, could see past the power house to the distance where the car was coming. The plaintiff then says he went ahead, supposing the car would make the usual stop; and when he found out, by the time the car had reached the stopping place, that it was not going to stop, he "whipped up," did the best he could to get off the track, and threw up his hand for the motorman to stop. The testimony varied as to where the wagon was struck; some witnesses testified that it was struck about the front wheels, and plaintiff testified it was struck about the center of the back wheels. The wagon and team were carried to the north side of the avenue, a distance of from 30 to 45 feet, and thrown off to the west side of the track.

Plaintiff's testimony indicates that he saw nothing in the attitude of the motorman nor in the way the car was coming to indicate that it would not stop at the usual place, until it was too late to escape the collision. Having knowledge of the custom, he had a right to presume the usual stop would be made, and if, acting upon that presumption, he used ordinary care for his own safety, he could not be nonsuited on account of his own negligence. After giving him the benefit of the presumption mentioned, whether, under the circumstances indicated, he was guilty of contributory negligence was a question for the jury, under numerous authorities in this state, if that issue was raised by the pleading.

The rule is that any person approaching a street car track has a right to presume that those operating cars on the track will exercise ordinary care to avoid injuring any one who may be about to cross, and has a right to act upon that presumption. The case of Moon v. St. Louis Transit Co., 237 Mo. 425, 430, 141 S. W. 870, Ann. Cas. 1913A, 183, is where the plaintiff was struck by a car and injured while crossing the street car track in a carriage. In describing the driver's approach to the track, the opinion says:

"When his horses got about 8 feet from the track, he being about 20 feet therefrom, he saw a car coming from the south, he thought, about 150 or 160 feet away. He judged he could cross safely, but when his horses were about 3 feet from the track he saw that the car was coming much faster than he at first thought, and he then whipped up. The carriage was struck on the rear hub. The driver testified that the car was going about three times as fast as the carriage at the time he was struck, and that he could have stopped the carriage in a distance of from 8 to 10 feet."

The court then, in commenting upon this evidence, said (237 Mo. 433, 434, 141 S. W. 871, Ann. Cas. 1913A, 183):

"But that is not all; the evidence for appellant further tended to show that the driver did not realize or discover that the car was running in excess of the ordinance speed until the team was within 3 feet of the track, which fact made it impossible for him to have stopped in time to have avoided the collision if he could not have stopped the team under 8 or 10 feet, as the evidence tended to show; and, until he discovered the speed of the car, the driver had the right to presume, and to rely upon the presumption, that the car was sot running in excess of the speed prescribed by the ordinance. If the speed of the car had not exceeded that fixed by ordinance, then clearly, under the evidence in this case, the collision would not have occurred."

It is impossible to see the difference in principle between that case and this. There the plaintiff had a right to presume that the street car employés would keep within the speed limit; he could not tell that they were exceeding the speed limit, and, collating upon the presumption, he drove upon the track, and would have got across safely, except for the excessive speed of the car; and it was held that he was not guilty of contributory...