Hill v. Harvey

• Decision Date: 03 December 1917
• Docket Number: No. 18546.,18546.
• Citation: 201 S.W. 535
• Parties: HILL v. HARVEY et al.
• Court: Missouri Supreme Court

201 S.W. 535

HILL v. HARVEY et al.

No. 18546.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Rehearing Denied December 22, 1917.

Motion to Transfer to Court in Banc Overruled March 4, 1918.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Hubert Hill against Ford F. Harvey and another, as receivers of the Metropolitan Street Railway Company. From a judgment for plaintiff, defendants appeal. Affirmed.

Clyde Taylor and Charles A. Stratton, both of Kansas City, for appellants. Piatt & Marks, of Kansas City, for respondent.

WOODSON, J.

This suit originated in the circuit court of Jackson county, by which the plaintiff seeks to recover $40,000 for personal injuries sustained by him through the alleged negligence of the defendants in running a street car over him and cutting off both of his legs, one below and the other above the knee. The trial resulted in judgment in favor of the plaintiff for $20,000, and after unsuccessfully moving for a new trial, the defendant appealed the cause to this court.

After being stripped of all collateral matters the case is reduced to the application of the humanity doctrine to the facts disclosed by the record. At the close of the plaintiff's case, the defendant asked a demurrer to the evidence, which was by the court refused. This ordinarily calls for a review of the plaintiff's evidence, but in this case the abstract of the record is so lengthy, covering over 500 printed pages, to say nothing of plats and photographs introduced in evidence, it would be almost impossible to even state the substance of the testimony, much less a summary of it without lengthening the opinion beyond all reasonable limits. We might have been tempted to have made a short statement of the evidence had we received any assistance in that regard from counsel, which we have not. The statement, points, and authorities of counsel for appellant cover 300 printed pages, and that of respondent 292 pages, to say nothing of the additional abstract and reply briefs.

From the view we have taken of the case it may be conceded that the defendant was wholly free from all negligence in not seeing the plaintiff prior to the instant he stepped in front of the car, and that the motorman had no opportunity whatever to stop the car before it struck and knocked him down. The motorman testified that within a second or two after he saw plaintiff emerge from the car approaching him from the opposite direction the plaintiff stepped with one foot over the south rail, and that within a quarter of a second thereafter he was knocked down and rolled over by the fender of the car. Clearly under that evidence the defendant was not guilty of contributory negligence in not seeing plaintiff in time to have stopped or slackened the speed of the car and thereby have prevented the injury. In fact we do not understand counsel for respondent to seriously contend to the contrary; but they base their right of recovery upon the plaintiff's testimony which tended to prove that after the plaintiff was knocked down he grabbed hold of the fender with his hands and was dragged from 8, as some of the evidence tended to show, to 38 feet, as testified to by other witnesses; that from exhaustion or a jar of the car plaintiff lost his hold upon the fender, and was run over by the car, and was injured as before stated; that the car, at the time of the collision, was running only 4 or 5 miles an hour, about as fast as the plaintiff was walking; that the motorman testified that he saw the respondent all the time after he stepped in front of the car, and was knocked down, and that the car could have been stopped in 7 feet by the exercise of ordinary care, and that it was in fact stopped in this case in 7 feet and 11 inches. Other evidence also tended to show that by the exercise of ordinary care the car could have been stopped or the speed thereof so slackened in time to have averted the injury.

It is true the evidence for the defendant tended strongly to contradict that of the plaintiff in the particulars just mentioned, but it was not within the province of the court to say the appellants' evidence was true, and that of the respondent was false. That was for the jury to decide, and for that reason the demurrer was properly refused. Barth v. Kansas City Elevated Ry. Co., 142 Mo. 535, loc. cit. 548, 44 S. W. 778.

II. It is next insisted by counsel for appellants that there can be no recovery in this case under the humanitarian rule where, as here, it is insisted the respondent ran into the side of the car. This insistence is so closely connected with the matters considered by us in connection with the demurrer to the evidence that little remains to be said upon the subject. Of course, if the evidence had tended only to show that the respondent ran into the side of the car and was injured thereby before the motorman had time to stop or slacken the speed of the car, the company would not have been liable for said injury, but, as previously stated, in connection with the demurrer, the evidence tended to show that after respondent had rim into the car and was knocked down he grabbed hold of the fender and was dragged from 8 to 38 feet in plain view of the motorman and that by the exercise of ordinary care he could nave stopped or so slackened the speed of the car in time to have averted the injury. Those facts so clearly bring the case within the operation of the humanitarian doctrine that it is hardly necessary to cite authorities in support thereof; however, we will cite the case of Eppstein v. Railway Co., 197 Mo. loc. cit. 733, 94 S. W. 967.

III. Counsel for appellants next insist that:

"Instruction numbered 1, given by the court at the request of the plaintiff, was erroneous, for the reasons that it did not require the jury to find as a fact that plaintiff was dragged; that the motorman could have seen him in that position; and that after he saw, or by exercising ordinary care could have discovered, plaintiff in said dragging position, he could have stopped the car in time to avoid injury to plaintiff, and negligently failed so to do, and it was broader than the, petition."

That part of the instruction complained of is as follows:

"The court instructs the jury that whether plaintiff Hubert Hill, walked or ran into the car or against the side of the fender, or was struck by the front roller thereof, if you believe and find from the evidence the motorman could by the exercise of ordinary care after he saw, or by the exercise of ordinary care would have seen, said Hubert Hill was colliding with or was going to collide with said...