Harrington v. Kansas City Rys. Co.

• Decision Date: 05 January 1920
• Docket Number: No. 13438.,13438.
• Citation: 217 S.W. 879
• Parties: HARRINGTON v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

217 S.W. 879

HARRINGTON v. KANSAS CITY RYS. CO.

No. 13438.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by M. J. Harrington against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and L. T. Dryden, of Independence, for appellant.

John D. Strother, of Independence, and Guthrie, Conrad & Durham, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, driving a heavily loaded furniture van westward on what is known as Blue avenue or Fifteenth street between Kansas City and Independence, Mo., approached and drove upon the crossing over defendant's street railway line, and was struck by a north-bound car and severely injured, for which he brought this suit, praying damages in the sum of $15,000. The first trial resulted in a judgment for the railway which, upon appeal to the Supreme Court, was reversed, and the cause remanded for a new trial. See Harrington v. Dunham, 273 Mo. 414, 202 S. W. 1066. The change in the style of the case arises from the fact that the present defendant has been substituted'. as the successor of the receivers, under a general arrangement and agreement

The second trial was had upon the same petition, and substantially the same evidence was adduced. The answer was amended so as to include a charge of contributory negligence in this:

"That plaintiff failed to keep a proper lookout for the approaching car and drove his team immediately in front of the approaching car without taking any precautions to stop his team, and failed to look or listen for the car."

The second trial resulted in a verdict and judgment for plaintiff in the sum of $7,000 and, since that is now the "amount involved," the appeal, under the Constitution comes to this court. The errors complained of relate only to the giving and refusing of instructions and to the size of the verdict.

The facts in the case are particularly set forth in the opinion of the Supreme Court, 273 Mo. 421-422, 423, 202 S. W. 1066. Without again stating them with particularity, we may, for convenience, recapitulate them by saying that Blue avenue was 100 feet wide, with a macadamized roadway 26 feet in width along its middle. On the south edge of the avenue and along the east side of the car tracks, 6 feet therefrom, stood a power house. Halfway between the northwest corner of the power house and the center of the street was a signpost with the word "Stop" in large letters thereon, creating what is known as a "safety stop" at that point. In other words, all north-bound cars were required to stop on the south side of and before crossing Blue avenue no matter whether there were passengers to take on or discharge there or not, and cars customarily stopped there before going across. This had been in force for many years, and plaintiff was well acquainted with that fact. Blue avenue was a much traveled highway, being the main thoroughfare between Independence and Kansas City.

Plaintiff, in his westward journey along Blue avenue, and before he got to where the power house shut off his view south along the track, looked for a car, but saw none. He continued looking until the power house obstructed his view and drove on until he had cleared the power house sufficiently to again see down the track, at which time he saw a car coming from the south, but which had not yet reached the power house. At the moment he got to where he could see past the power house his horses' feet were going over the first rail of the track. But, as plaintiff knew of the safety stop and saw nothing to indicate that the car was not going to stop there, as it always did, he continued on in his passage over the rails. He kept looking at the car, however, but when the car got within 30 or 35 feet of the safety stop plaintiff noticed it hadn't slacked up any, and he threw up his hand at the motorman, and then whipped up his horses and tried to get out of the way. The rear half of his van, however, did not clear the track before the car reached the crossing and struck it, seriously injuring him.

On this appeal the existence of the safety stop and the customary observance thereof are conceded, and under the decision on the former appeal there can be no question but that a case was made for the jury.

Plaintiff's instruction No. 1, upon which his case went to the jury, submitted the question of whether there was an established custom for north-bound cars to stop before entering upon or crossing the avenue, and further submitted that if plaintiff was driving west on said highway, and that if he knew of such custom to stop, and if, as he approached the track, he relied upon said custom, and proceeded westward and across the tracks, and that if the jury further found that the operatives of the north-bound car "failed to stop the same at the usual and customary stopping place, if any, and ran on by said place and into and against the wagon of plaintiff; and if you further find that said acts of the agents and servants of defendant in failing to stop said car and in running the same by said place, if you so find, under all the facts and circumstances in evidence constituted negligence; and' if you further find that as a direct result of such negligence, if any, said west-bound car collided with the wagon in which plaintiff was riding, and that plaintiff was thereby thrown from said wagon to the ground and injured, then you will find for the plaintiff, provided you further find that plaintiff was himself then and there exercising ordinary care."

It is said that this instruction is erroneous because it submits the question of whether plaintiff knew of the custom to stop, when the petition does not allege he knew it. The petition does allege this, however. It pleads the facts, alleges the established custom, and then alleges that, "relying upon said custom," he started across said track in the exercise of due care. It would seem that this necessarily implies that he knew of it, since it is difficult to see how plaintiff could rely upon the custom without having any knowledge of it. The plaintiff's evidence, admitted without objection, was that he knew and had known of the custom for many years and relied upon it, and the case has been twice tried...