Harris v. Metropolitan Street Railway Co.

• Decision Date: 17 February 1913
• Citation: 153 S.W. 1067,168 Mo.App. 336
• Parties: RAY G. HARRIS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

153 S.W. 1067

168 Mo.App. 336

RAY G. HARRIS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 17, 1913

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

AFFIRMED (conditionally).

Judgment affirmed in part and reversed in part and cause remanded.

John H Lucas and Chas. N. Saddler for appellant.

E. R Morrison and James E. Nugent for respondent.

OPINION

ELLISON, J.

--Plaintiff was injured in being thrown from his wagon in a collision with one of defendant's street cars on Thirty-first street in Kansas City. He brought this action for damages and recovered judgment in the trial court.

The drift of the evidence and the instructions require the case to be considered from the standpoint of the humanitarian doctrine. It appears that plaintiff was the driver of a one-horse delivery wagon, with a covered top, for a merchant in Kansas City, and in the performance of his duties he had stopped at one of the residences on the north side of Thirty-first street between Troost avenue on the east and Harrison street on the west. After making delivery there, he came out and looked east towards and beyond Troost avenue for a car. He did not see any and as he intended going to Harrison street he drove slowly about fifteen feet diagonally south and west onto the street car track, and thence directly west along and on the track for about seventy-five feet when he was overtaken by one of defendant's cars which struck his wagon, turned it about and then upset it onto him.

As plaintiff's horse was old, gentle and slow, some little time elapsed after he looked for a car and before he turned across onto the tracks and had proceeded the distance stated. There was a car line on Troost avenue which the Thirty-first street cars must cross, and they made a safety stop at that place. It is down grade from Troost to Harrison and nothing could prevent the motorman from seeing plaintiff's wagon, if he looked at all, from the time he would start up, after his stop, to cross Troost avenue. The wagon being a covered one with its rear to the motorman, its position, its slow progress and the direction it was going was a suggestion to any reasonably careful motorman to look out that he did not strike it. There was direct evidence showing he could have stopped his car in time, but the face of the whole evidence for plaintiff and the conceded facts are abundantly sufficient for the reasonable inference that he had ample time to have slowed down his speed after he must have observed plaintiff's peril, and thereby have averted the collision. The evidence in defendant's behalf tends to show a sudden and unexpected turning onto the track by plaintiff and a collision which it was impossible to avoid. But on a demurrer to testimony we are not concerned with defendant's showing, so long as the evidence for plaintiff is not in conflict with physical facts and is within the bounds of reason.

The instructions are without fault. It is said in criticism of No. 1 for plaintiff that it stated the duty of the motorman to be to keep "a vigilant watchout ahead," when there was no ordinance of the city requiring such watch. This objection is tantamount to saying that in the absence of a municipal ordinance it is not a want of ordinary care if a motorman does not keep a vigilant watch for vehicles in thickly settled portions of a city. But we think it is; and that an ordinance to that effect is but an affirmance of what reasonable prudence requires of those who handle such dangerous agencies in a city as a rapidly running...