Hoagland v. Kansas City Rys. Co.

• Decision Date: 17 February 1919
• Docket Number: No. 13136.,13136.
• Citation: 209 S.W. 569
• Parties: HOAGLAND et ux. v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

209 S.W. 569

HOAGLAND et ux. v. KANSAS CITY RYS. CO.

No. 13136.

Kansas City Court of Appeals. Missouri.

February 17, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by William L. Hoagland and wife against Robert J. Dunham and others, receivers, for whom, by amendment, the Kansas City Railways Company was substituted as defendant. Judgment for plaintiffs, and defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, Mo., R. J. Higgins, of Kansas City, Kan., and Chas. N. Sadler, of Kansas City, Mo., for appellant.

Jay L. Oldham and Harding, Deatherage, Murphy & Stinson, all of Kansas City, Mo., for respondents.

TRIMBLE, J.

This is an action under section 5425, R. S. 1909, by the parents of a seven year old boy who was run over and killed by a street car operated by the receivers of the Metropolitan Street Railway Company. Upon the first trial, a verdict and judgment for plaintiffs was obtained, and the case was appealed, and reversed and remanded, because of an instruction which was broader than the petition. Hoagland v. Dunham, 186 S. W. 1145.

Thereafter an amended petition was filed, and later the Kansas City Railways Company was substituted as defendant in the place of the receivers, because it had become the purchaser of the Metropolitan Street Railway at receivers' sale, and in so doing it assumed the liabilities of the receivers incurred while operating the road. A second trial was had, and plaintiff obtained a verdict and judgment for $3,000. From this the defendant brings the case here again.

One of the specifications of negligence in the original petition was the running of the car "at an unreasonable, highly dangerous, and negligent rate of speed, to wit, in excess of 12 miles per hour," as provided in an alleged ordinance. In the amended petition the specification as to speed read simply "at an unreasonable, highly dangerous, and negligent rate of speed," without saying anyabout an ordinance or any speed limit. This was the only difference in the petition from the one on which the former trial was had, and the case was submitted upon the same charges of negligence as before.

The facts in the case are fully set forth in the opinion on the former appeal, and it is therefore unnecessary to here set them out in detail again. It may be well, however, to say that the car that did the killing was being run north on Prospect avenue in Kansas City; that Thirty-Seventh and Prospect, where the tragedy occurred, was in a thickly settled residence portion of the city, and this intersection was also a business center, and was a place subject to a great deal of travel by men, women, and children, especially by the latter at or near the noon hour in going home to lunch from a schoolhouse on Thirty-Seventh, several blocks east of Prospect avenue; that the motorman in charge of the car had for a long time driven the car along Prospect avenue and at the noon hour, and knew that said corner or intersection was a muchtraveled place, and that children were likely to be using the street at such hour, all of which was alleged in the petition. It should also be stated that for a block or a block and a half south of Thirty-Seventh street, a motorman driving a car north to the intersection would be going downgrade, and could easily and plainly see the corner at Thirty-Seventh, and observe persons at said corner and, about to cross Prospect avenue at that intersection; that plaintiffs' boy, Harold, came west on Thirty-Seventh to the corner, turned it slightly, and then started across Prospect, going in a northwesterly direction, and while on the track and in between the rails was struck, knocked down, and dragged for a distance of 75 feet by the car coming from the south as aforesaid. There was evidence that the car was going 15 or 20 miles per hour, and that no gong was sounded or warning given; that 10 or 12 miles per hour was the usual speed.

Some points are urged which were pressed upon our attention when the case was here before. While the decision rendered on the former appeal is not res adjudicata, in the sense that we are precluded from again investigating the soundness of the conclusions reached therein, yet, unless it is made to appear that such conclusions are erroneous, the former decision becomes the law of the case and will not be reopened. Ward v. Haren, 183 Mo. App. 569, 581, 167 S. W. 1064; Scott v. Parkview Realty, etc., Co., 255 Mo. 76, 102, 164 S. W. 532; People's State, etc., Bank v. Missouri, etc., R. Co., 193 S. W. 937, 938. As stated, the charges of negligence were the same as they were before, and for all practical purposes the evidence was the same at the last trial as it was at the first. It is true a few additional witnesses testified, but, so far as materially affecting or changing the issues is concerned, such additional testimony made no difference, and only furnished matter which the jury might use or consider in reaching its verdict, but such difference could not affect our disposal of the case. The instructions are also practically the same as before, or, if there is any difference, it will hereinafter be noted. So far, therefore, as concerns those points which the former opinion shows were considered and decided, or were necessarily within the purview of the disposition then made of the case, we will not change our former rulings thereon, unless clearly convinced that they were wrong. A study of the case, as again presented, reveals nothing to justify us in coming to a different view upon any of the points thus clearly decided.

Among these is the holding that there was evidence from which the jury could find that there was negligence in running the car at the high speed it was run over this heavily traveled and much-used crossing and intersection, at an hour when it was known that school children would be likely to be using it in returning home for lunch; also that the jury could find that there was negligence in failing to give warning of the car's approach, and that either one or both of such negligent acts proximately caused the boy's death; and that the demurrer to the evidence was properly overruled. The foregoing matters were necessary to a decision of the case, were presented, directly considered, and decided. A survey of the testimony as presented on this appeal discloses that it affords fully as good, if not a better, basis for a similar holding.

It would seem that the former opinion also held that plaintiff's instruction ...