Hebeler v. Metropolitan St. Ry. Co.

• Decision Date: 29 June 1908
• Parties: HEBELER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

112 S.W. 34

132 Mo. App. 551

HEBELER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

Rehearing Denied July 15, 1908.

1. NEGLIGENCE—ISSUES—CONTRIBUTORY NEGLIGENCE.

Where plaintiff's want of care appeared in making out his own case, contributory negligence was in issue, though it was not set up in defendant's answer.

2. STREET RAILROADS — COLLISION — NEGLIGENCE OF MOTORMAN.

In an action for damage to plaintiff's team by colliding with defendant's car, it appeared that plaintiff's driver was driving between defendant's tracks, and that the car and wagon were in plain view of each other for several blocks; that plaintiff's driver actually saw the car coming for a block or two, and attempted to get off the track within sufficient time to have done so, but for the unexpected sliding of the wheel along the track. Held, that the motorman's conduct should only be judged by the standard of an ordinarily prudent man, and he was not required to foresee that the wheel would slide on the rail, and he was therefore not guilty of negligence.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by W. F. Hebeler against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John H. Lucas, Ben T. Hardin, and C. S. Palmer, for appellant. Kelly, Brewster & Buchholz, for respondent.

ELLISON, J.

This is an action for damages done to plaintiff's wagon and team of horses by coming into collision with one of defendant's street cars. The judgment was for the plaintiff in the trial court.

It appears that defendant operates a double-track street railway on Woodland avenue, a street running north and south in Kansas City; that plaintiff's servant, with his team and empty wagon, entered upon the west track at Forty-Third street and drove north, thus being in position to meet south-bound cars. He drove on the track to a point between Thirty-Eighth and Thirty-Ninth, when the wagon and team were struck by a south-bound car and badly damaged. The verdict was obtained alone upon the theory of the last chance doctrine. Defendant makes two contentions which we care to notice. One is that plaintiff was guilty of contributory negligence which it is argued should have given the case to the defendant. Plaintiff insists that the answer did not make a proper plea of contributory negligence, and therefore such defense is not in the case. Conceding, but not deciding, that the answer did not set up such plea, contributory negligence would still be in the case for the reason that plaintiff's want of care appeared in making out his own case. Milburn v. Railway Co., 86 Mo. 104.

But we will pass that by, for defendant's second contention is the decisive point in the case; that is, that there is no ground of recovery under the last chance rule, for the reason that there was no justifiable...