Hensley v. Kansas City Rys. Co.

• Decision Date: 03 March 1919
• Docket Number: No. 13137.,13137.
• Citation: 214 S.W. 287
• Parties: HENSLEY v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

214 S.W. 287

HENSLEY v. KANSAS CITY RYS. CO.

No. 13137.

Kansas City Court of Appeals. Missouri.

March 3, 1919.

On Motion for Rehearing, April 7, 1919.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Virginia Hensley against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, Mo., R. J. Higgins, of Kansas City, Kan., and Charles N. Sadler and Roscoe P. Conkling, both of Kansas City, Mo., for appellant.

Swearingen & Finnell and Volney McFadden, all of Kansas City, Mo., for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury inflicted by one of defendant's street cars. She recovered judgment in the trial court.

It appears that plaintiff and her husband, accompanied by one Hill and his wife as guests, were riding in their automobile at about 8:30 p. m., in March, 1916, dusk—neither fully light nor dark. As they were crossing one of defendant's tracks the engine stopped, and Hill got out to "crank it up" after the auto stopped. It was not dark because of an are light near by. Plaintiff noticed a street car back "a half block" (the headlight was burning), and her husband went back about half way to signal the car to stop. He waved his hat, but no notice was taken and the car ran into the automobile before plaintiff could jump out, as she prepared to do when she saw it was not stopping. She was badly and permanently hurt. She suffered a miscarriage and was compelled to employ a physician and a surgeon. An operation was performed.

Defendant undertook to show that plaintiff was not in the auto when it was struck and that she was not hurt; but if she was hurt that its servants in charge of the car were not negligent. There was abundant evidence tending to show that she was in the car and that defendant was negligent. Defendant further undertook to show that plaintiff was guilty of contributory negligence, and, on that account, even if such servants were negligent, the judgment should be reversed.

Disposing of the last point, we find that contributory negligence was not pleaded by defendant, and in consequence such question is not in the case, unless it appears, as a matter of law, from the evidence in plaintiff's behalf. Sissel v. Railroad, 214 Mo. 515, 527, 113 S. W. 1104, 15 Ann. Cas. 429; Schultze v. Railroad, 32 Mo. App. 438, 448. And this the defendant undertakes to make out by the conceded fact that the auto in which plaintiff was riding was driven onto the street car track when the car could have been seen, stopped, at a street a half block away. That was no showing of negligence. Vehicles in a city, from necessity, are constantly crossing and stopping on street car tracks in the reasonable belief that a street car approaching from a distance will not causelessly run them down. The mere attempt to cross over the track in this instance was not the slightest evidence of negligence. That was a common and innocent act, which would easily have been accomplished while the street car was a block away, if the engine of the auto had not suddenly ceased to work just as the auto got upon the track, an accident not pretended to be anticipated or charged against plaintiff.

The other point against plaintiff is that she was negligent in not jumping out of the auto before it was struck, but it would be preposterous to state that that appeared, as a matter of law, from the testimony in her behalf. Though what we have just stated disposes of the matter, yet we may add that a perusal of the record has left us convinced that there was not even evidence having a fair tendency to prove she was guilty of contributory negligence. A knowledge that such was the character of case is perhaps the reason it was not pleaded.

What we have said disposes of most of the instructions offered by defendant and refused by the court. Instruction No. 8, besides being otherwise improper, is flagrantly so in omitting to hypothesize whether plaintiff saw her husband signaling the motorman to stop, and whether the latter saw the husband, who had gone half way up the block and signaled him to stop.

Instruction No. 10 was properly refused in requiring plaintiff to affirmatively prove that she was exercising ordinary care during "all that time." There is a presumption that plaintiff was exercising ordinary care, and it need not be specifically shown by affirmative evidence. Besides, the want of ordinary care, that is, contributory negligence, is not in the case. Hudson v. Railroad, 101 Mo. 13, 29, 14 S. W. 15.

Instruction No. 11 seems to find no application to the case; the stopping of the engine of the auto caused it to be on the track, and not the attempt to drive across. But for that it would have been far away before the street car came on the scene. Besides, our remarks on contributory negligence shows the trial court properly disposed of the instruction. The same may be said of instruction No. 12.

Plaintiff's instruction No. 1 is unobjectionable. Substantially, the criticism made of it is met by what we have written.

Defendant took the deposition of Bernice Golden and offered it in evidence. It was excluded by the court. It appears that she gave her testimony in chief, but that when plaintiff's counsel began a cross-examination she suddenly left the room. It seems she returned next day, in plaintiff's absence, signed the deposition so far as it had been taken, and disappeared. Plaintiff was left without opportunity to cross-examine. The court properly excluded it. And so, we think, the court, in the circumstances, exercised a proper discretion in overruling defendant's application for a continuance, based on the exclusion of the deposition.

Plaintiff introduced, as an expert, one of the physicians who attended her. After hypothesizing statements of facts, he was asked this question:

"I will ask you to state if in your opinion as a physician, under these facts and circumstances as I have related, whether the blow she received was the probable cause of this miscarriage?"

He answered that "it was the probable cause." The question is supported by Wood v. Railway Co., 181 Mo. 433, 448-455, 81 S. W. 152, and that case was doubtless the ground of the question and the ruling.

It will be noticed that the witness was not asked whether the blow was the cause of the miscarriage, nor did he answer that it was the cause. He answered that it probably was the cause. Now the word "probably" signifies...