Hartman v. Fleming
| Decision Date | 31 July 1924 |
| Docket Number | 23999 |
| Citation | 264 S.W. 873 |
| Parties | HARTMAN v. FLEMING et al |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled August 27, 1924.
Charles N. Sadler, Mont T. Prewitt and Roscoe P. Conkling, all of Kansas City, for appellants.
Hogsett & Boyle, of Kansas City, for respondent.
The plaintiff sued on account of injuries sustained by him to his person, through the alleged negligent operation of a street car belonging to the Kansas City Railways Company, whereby the street car collided with a large truck, which was thereby thrown against the plaintiff. He had a verdict and judgment for $ 10,000 against the defendants, who were sued as the receivers in charge of the operation of the properties of the street railway company. The truck which was struck, and was thereby caused to strike the plaintiff, was owned and being operated by the Barrel Remodeling & Cooperage Company. The sole allegation of the amended answer (filed after certain prior proceedings) going to the merits, and, beyond a general denial, was that the plaintiff's injuries were caused through the negligence of the cooperate company whereby its truck ran into the street car, and also upon and against plaintiff. The evidence showing the particular circumstances under which the plaintiff's injuries were sustained will be taken up further on in the opinion.
Some months after filing their first answer, the defendants filed in the District Court of the United States for the Western Division of the Western District of Missouri, their petition for a writ of certiorari, and for the removal of the cause to said District Court, upon the ground that, as receivers appointed by the said District Court, they were officers of the United States and of said District Court, and that the cause was removable under the provisions of section 33 of the Judicial Code, as amended by the act approved August 23, 1916 (39 Stat. 532 [U. S. Comp. St. § 1015]). A writ of certiorari issued thereon. Afterwards, upon motion of the plaintiff, the District Court of the United States dismissed the petition for the writ, and remanded the cause to the circuit court of Jackson county. The defendants filed in the circuit court their plea to the jurisdiction of that court grounded upon their character as receivers, and upon the provisions of the federal statute, assigning as error the action of the federal court in remanding the cause, and setting up certain provisions of the federal and state Constitutions. The defendants, in their amended answer upon which the cause was tried, also attacked the jurisdiction of the circuit court, upon the grounds above stated. The plea to jurisdiction was overruled. Upon that error is assigned.
Upon the foregoing question of jurisdiction and right of removal, the defendants cite Matarazzo v. Hustis (D. C.) 256 F. 882, and the federal statute. The case referred to was one decided by the District Court for the Northern District of New York. In that case the plaintiff was a resident of New York, and sued as administrator of the estate of his deceased son, a resident of New York, for damages sustained by the death of the son, which occurred in New York, through the negligence of the defendants as receivers of the Boston & Maine Railroad, under appointment of the federal District Court in the state and district of Massachusetts. The plaintiff, although a resident of New York, was an alien, and a citizen and subject of the kingdom of Italy. Very much of the opinion consists of a discussion of phases and sections of the Judicial Code upon questions of jurisdiction and removal of causes, other than the particular one here involved. In that case diversity of citizenship was involved. Without the discussion in an exhaustive or persuasive way of the provisions of section 33 of the Judicial Code as amended, that court held, and in an incidental manner, that the suit was removable under that section. In the case at bar, the District Court for the Western District of Missouri, upon a consideration of the purpose and effect of section 33 of the Judicial Code, as amended by the act of August 23, 1916 (39 Stat. 532 [U. S. Comp. St. § 1015]), held that said section did not authorize the removal of this cause by reason of the defendants being receivers appointed by that court. The holding was that said section 'affects only the official status of the receiver and his control of the estate in his charge, as an officer of the United States and of the United States District Court, and does not apply to suits of this nature which seek merely to establish claims against the receivership estate for personal injuries arising out of the operation of the property by the receivers during the receivership -- suits in which the receiver is made a party in his representative capacity as receiver.' This action of the federal court is authoritative and conclusive here; and is not reviewable here. Missouri Pacific Ry. Co. v. Fitzgerald, 160 U.S. 556, 16 S.Ct. 389, 40 L.Ed. 536; McNulty v. Atlas Portland Cement Co. (Mo. App.) 249 S.W. 730, 733; section 1010, U. S. Compiled Statutes. In assuming jurisdiction the trial court did not deny to the defendants any federal right, or any right under the state Constitution.
The next assignment to be noticed is that the court erred in refusing to give to the jury the peremptory instruction offered by defendants in the nature of a demurrer to the evidence. The plaintiff received the injuries for which he sued, at a little before noon, on November 13, 1920, and at a point upon the north side of Independence avenue, and distant west 45 or 50 feet from the northwest corner of the intersection of Independence avenue with Troost avenue, in Kansas City. Independence avenue extends east and west, and Troost avenue extends north and south. At the northwest corner of this intersection, fronting south on Independence avenue, was a building occupied as a soft drink parlor. Adjoining this on the west was a grocery store. There were two street railway tracks on Independence avenue, and west-bound cars, as was the one here involved, used the north track. At the time of and immediately before plaintiff's injury, there was a Ford car standing near the curb, in front of the soft drink establishment. The plaintiff was a bakery salesman, and used an electric truck in the delivery of bread to customers. At the time of his injury he had stopped his truck, headed west, in front of the grocery store, and near the curb, and was standing at the rear of the truck, facing west, and was engaged in taking bread from the truck to be delivered into the grocery store. At this time the large truck of the Cooperage company, driven south on Troost avenue, turned west on Independence avenue, and, rounding the corner and passing to the south of the standing Ford car, came in part upon the north track of the street railway, and was struck by a west-bound street car, whereby the cooperage company truck was thrown northwestward against the plaintiff's truck, and against him. The pertinent allegations of the petition were that the street car was being run at a dangerous and negligent rate of speed, and at a speed unreasonable and negligent under the particular circumstances, in violation of an ordinance of Kansas City; that defendants failed to give any warning of the approach of the car toward the truck of the cooperage company, and failed to keep a reasonably careful lookout for vehicles passing upon the west-bound track at and before the collision, and saw or by the exercise of ordinary care could have seen the cooperage company truck and its driver approaching a position of peril, and in a position of peril in front of the street car, and oblivious of such peril, and the danger of injury to plaintiff in case of collision, all in time, by the exercise of ordinary care, to have stopped the street car or to have slackened its speed, or to have sounded a warning, and thereby have avoided a collision, but negligently failed to stop, or to slacken the street car, or to sound a warning of its approach. The defendants urge that the verdict and judgment are contrary to undisputed and undoubted physical facts given in evidence. More particular reference to the size of various objects and the relative distances of these from each other, will be made later. The place where the collision occurred is in a congested district, and the street one much used. It is not necessary to go extensively or in detail into the evidence as to the speed of the street car as it approached the place of collision. Upon this issue the plaintiff introduced nine or ten witnesses who were either passengers upon the street car or were near the scene at the time, and who saw it approach, and saw the collision. These witnesses estimated its rate of speed variously, as being from 25 to 35 miles an hour. Its speed as it approached the intersection of Troost avenue was such as to cause uneasiness to one or more of the passengers. The truck of the cooperage company was a large one, weighing, unloaded, 6,700 pounds. It was running at the time of the collision at a speed of about 7 miles an hour. The impact threw it forward off of the railway track, in a northwest direction, toward and against the truck at which plaintiff stood, with such force that plaintiff's truck, which according to plaintiff's own testimony had the brakes set, was pushed forward 25 or 30 feet; according to other testimony, a much less distance.
The testimony was undisputed that the street car ran as much as a block and a half before it was stopped. Before it was stopped it collided with a loaded ice wagon. The testimony was that the air brake of the street car was in good condition prior to the collision, and that the effect of the...
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