Hogan v. Fleming

• Court: Missouri Supreme Court
• Writing for the Court: Seddon, C.
• Citation: Hogan v. Fleming, 297 S.W. 404, 317 Mo. 524 (Mo. 1927)
• Decision Date: 25 June 1927
• Docket Number: 26469
• Parties: John A. Hogan v. Fred W. Fleming et al., Receivers of Kansas City Railways Company, Appellants

297 S.W. 404

317 Mo. 524

John A. Hogan v. Fred W. Fleming et al., Receivers of Kansas City Railways Company, Appellants

No. 26469

Supreme Court of Missouri

June 25, 1927

Motion for Rehearing Overruled July 30, 1927.

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Reversed and remanded.

Chas N. Sadler and John R. Moberly for appellants.

(1) The court erred in overruling the demurrer interposed at the close of plaintiff's evidence, and renewed at the close of all the evidence. (a) No negligence under ordinance was shown. Ordinance 28759, secs. 2, 5, 6, 9, 26. (b) No custom was properly pleaded or shown. Percell v. Railroad, 126 Mo.App. 53; Pankey v. Railway, 180 Mo.App. 185 199; Railway Co. v. Lindeman, 143 F. 949; Shields v. Railway, 87 Mo.App. 637; Press Co. v. Stanard, 44 Mo. 71, 82; Bowman v. Car & Foundry Co., 226 Mo. 53; Guiney v. Railway Co., 167 Mo. 595. (c) Even if ordinance and custom were properly pleaded and disregarded, same was not the proximate cause of injury. Borack v. Mosler Safe Co., 288 Mo. 83; DeMoss v. Rys. Co., 246 S.W. 566; Woods v. Wells, 270 S.W. 335; Morris v. Power & Light Co., 258 S.W. 432; Smith v. Ozark Water Mills Co., 238 S.W. 575; Daneschocky v. Sieble, 195 Mo.App. 470; Harper v. Terminal Co., 187 Mo. 575; 29 Cyc. 488, 495. (2) The court erred in giving Instruction P-1 asked by respondent. (a) No evidence upon which to base it. Sims v. Railway Co., 116 Mo.App. 572; Steel v. Railway Co., 265 Mo. 110; Oglesby v. Railway Co., 177 Mo. 274; Jordan v. Transit Co., 202 Mo. 418. (b) Broadens issues made by pleadings. Moore v. Railway Co., 142 Mo.App. 294; Hall v. Coal & Coke Co., 260 Mo. 351; Davidson v. Transit Co., 212 Mo. 352; Roscoe v. Railway Co., 202 Mo. 576. (3) The court erred in refusing to give Instruction D-2 asked by appellants. Barton v. City of Odessa, 109 Mo.App. 81; Guiney v. Southern Elec. Ry. Co., 167 Mo. 595; Evans v. Foreman, 60 Mo. 453; Sadler v. Peoples, 105 F. 712; 1 Blashfield's Instructions (2 Ed.) 137.

George H. Kelly, William Buchholz, Isaac B. Kimbrell and Martin J. O'Donnell for respondent.

(1) The evidence in the case disclosed that defendants' motorman violated the provisions of the ordinance as construed by appellants and their predecessors operating the street railway in failing to give police patrol the right of way between cross streets in that the operator of said street car negligently failed to stop when the motorman heard or could have heard the siren sounding and negligently drove the street car between the loading docks after the patrol wagon entered the space between said docks and that said acts of negligence were the proximate cause of the collision and injury to plaintiff. Smith v. Mederacke, 302 Mo. 538; Hogan v. Fleming, 265 S.W. 875; Shearman & Red. on Negligence, sec. 32; Buckner v. Horse & Mule Co., 221 Mo. 700; Kidd v. Ry., 274 S.W. 1079; Harrison v. Light Co., 195 Mo. 625; Obermeyer v. Chair Co., 229 Mo. 111; Dole v. Light Co., 121 La. 945; 29 Cyc. 488, 495; Lindman v. Kansas City, 271 S.W. 522; Shafir v. Sieben, 233 S.W. 419; Shafir v. Carroll, 274 S.W. 755; Adleman v. Altman, 209 Mo.App. 583; Southern Ry. Co. v. Webb, 116 Ga. 153; City of Louisville v. Hart's Admrs., 143 Ky. 171. (2) Had the defendants' motorman obeyed the city ordinance and the custom by stopping the electric street car at the time that he heard, or by ordinary attention should have heard, the siren sounding, the street car would have been stopped at the intersection of Eleventh Street and Grand Avenue, more than one-half block from the scene of the collision, and hence the collision would not have occurred, and therefore the negligence of the defendants' motorman was a proximate cause of the collision nd injury. Smith v. Mederacke, 302 Mo. 552; Nolan v. Rys., 247 S.W. 431; Caldwell v. Payne, 246 S.W. 317; Brunke v. Telephone Co., 115 Mo.App. 36; Gordon v. Railroad, 222 Mo. 536; Casson v. Luske, 277 Mo. 677; Kirkland v. Bixby, 282 Mo. 469; Storoski v. Publishing Co., 235 Mo. 76; Neibert v. Railroad, 232 Mo. 641; Shafir v. Sieben, 233 S.W. 419. (3) The ordinance and the custom place persons riding on fire or police vehicles in the same situation with reference to their rights over street cars and other vehicles to the use of the streets, and the rules applicable to drivers of ordinary vehicles do not control the question here involved. Farley v. Mayor, 152 N.Y. 222; Nolan v. Railways, 247 S.W. 431; Duffy v. Railways, 217 S.W. 883; Michael v. Railway, 161 Mo.App. 53; Green v. Railways, 165 Mo.App. 14; Taylor v. Railway, 166 Mo.App. 131; State v. Sheppard, 64 Minn. 287. (4) This is not a case where an independent intervening cause operated to break the causal connection between the negligence of the defendants and the resulting injury to the plaintiff, for the reason that the plaintiff was riding on a patrol wagon driven by a driver over which the plaintiff had no control, and even though the said driver was guilty of negligence or guilty of exercising bad judgment or good judgment in seeking to avoid injuring a pedestrian on the street in swerving his machine to the eastward, yet such negligence of the driver in legal contemplation was merely concurring negligence or negligence which concurred with the negligence of the defendants to produce the injury. Miller v. Railways, 155 Mo.App. 528; Dickinson v. Railway, 104 Mo. 491. (5) The ordinance of the city was enacted and adopted for the very purpose of preventing such an injury as that which resulted from the defendants' violation thereof, and consequently the defendants' violation thereof was a proximate cause of the injury. Lindman v. Kansas City, 308 Mo. 161; Daneschocky v. Sieben, 195 Mo.App. 470; Shafir v. Sieben, 233 S.W. 419.

OPINION

Seddon, C.

This cause comes to the writer for opinion upon a reassignment. It is an action to recover damages for personal injuries alleged to have proximately resulted from the negligence of an employee of defendants (who at the time were the duly appointed receivers of the Kansas City Railways Company, a corporation) in the operation of a street car upon a public street in Kansas City. This is the second appeal in the cause. The first trial resulted in a directed verdict, and judgment for defendants. Plaintiff appealed to the Kansas City Court of Appeals, resulting in an opinion and judgment of that court reversing the judgment nisi and remanding the cause for a second trial. [Hogan v. Fleming, 265 S.W. 875.] Prior to the second trial, the petition was amended by increasing the amount of damages prayed from $ 7,500 to $ 50,000. The second trial resulted in a verdict and judgment for plaintiff in the sum of $ 15,000, from which the defendants were allowed an appeal to this court.

The evidence tends to show that, on February 16, 1921, the date of plaintiff's injury, plaintiff was a policeman, and, pursuant to his duties, he was responding to a call for a police patrol automobile sent in over the telephone to police headquarters. He was riding on the front seat of the police patrol automobile, which was driven and operated by a police chauffeur, one Pyeatt. The automobile was a left-hand drive, so that the chauffeur sat upon the left side of the front seat and plaintiff sat upon the right side of such seat. It was no part of plaintiff's duty to operate the automobile or to select the route to be traveled in responding to a call. The police patrol consisted of a large Packard chassis, upon which was placed a covered body. The words "Police Patrol" were painted upon the two sides of the automobile. Both plaintiff and the chauffeur were wearing the regulation police uniform. The police patrol was equipped with two signal devices, a gong and a siren. The sound of the siren is described in the record as a "screaming whistle," or shrill noise, and several witnesses testified that the sound of the siren could be heard a distance of from two to four or five city blocks. The police patrol was proceeding south upon Grand Avenue, a public street in the business district of Kansas City, having entered Grand Avenue at Seventh Street, and the casualty occurred in the city block between Tenth and Eleventh Streets. The police officers were directed to go to the corner of Twelfth and Oak Streets, located approximately two blocks south and two blocks east of the place of the casualty. Grand Avenue is a north-and-south street, the roadway proper being approximately 69 feet in width from curb to curb. Along the middle of the roadway, the defendants operated a street railway, consisting of two parellel tracks. The south-bound street cars used the west track and the north-bound cars used the east track. The distance between the outer rail of each track and the nearest street curb was approximately 24 feet and 8 inches, so that the distance between the outer rails of the two car tracks was approximately 19 feet and 8 inches.

For some time prior to the casualty there was used in the operation of the street railway, in the block on Grand Avenue between Tenth and Eleventh Streets, two wooden platforms, or "loading docks," so called, one platform being adjacent to the outside rail of the west cartrack and the other platform being adjacent to the outside rail of the east car-track. These platforms served as safety zones, upon which prospective street-car passengers stood while waiting to board the cars, and upon which passengers alighted when leaving the cars. The testimony is contradictory as to their exact size and relative locations upon the street. Plaintiff's witnesses testified that they were from 80 to 100 feet in length, three to four feet in width, and extended some six to eight or ten inches above the street pavement. Some of the witnesses testified positively that the loading platforms were...