Holzemer v. Metropolitan St. Ry. Co.

Decision Date14 July 1914
Docket NumberNo. 16479.,16479.
Citation261 Mo. 379,169 S.W. 102
PartiesHOLZEMER v. METROPOLITAN ST. RY. CO.
CourtMissouri Supreme Court

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

Action by Frank Holzemer against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter remittitur, otherwise reversed and remanded.

Plaintiff, while a pedestrian on one of the public streets in Kansas City, was struck by one of defendant's street cars and injured. This action is to recover damages for said injuries. Upon a second trial of the cause in the circuit court of Jackson county, plaintiff obtained a judgment for $15,000, and defendant duly perfected an appeal to this court. That portion of the petition specifying the negligence of defendant was as follows:

"That the injuries to plaintiff, and the damages to plaintiff on account thereof, were caused by the carelessness and negligence of said defendant in that said gripman and conductor in charge of said cable train failed to keep a proper lookout for persons who were on said street and who were liable to be struck by said train, and ran said train in a careless and negligent manner and in disregard of the rights of persons on said West Twelfth street and at or near said Belleview avenue, as aforesaid, and failed to check the speed of or stop said train or warn plaintiff of the approach thereof and thereby avoid running into the plaintiff, when they saw, or by the exercise of ordinary care ought to have seen, that plaintiff was in a situation where he was liable to be run into by said cable train unless the speed of said train was checked or it was stopped or plaintiff warned of the approach thereof before it collided with plaintiff."

The answer was a general denial. The accident occurred about noon, December 1, 1908, at the intersection of Belleview avenue and West Twelfth street, Kansas City, Mo. Twelfth street runs east and west. Upon this street the defendant had a double track, and at the place in question there was about a 5 per cent. grade in the street car tracks, being downgrade to the west and upgrade to the east. The north track was used for west-bound or downgrade cars, and the south track was used for east-bound or upgrade cars. Plaintiff was injured by one of the east-bound or upgrade cars. The street cars at this place were operated by means of an underground cable which was propelled at a rate of about eight miles an hour by means of a stationary steam engine. The train of cars operated at this place consisted of one grip car and one trail car or coach, and each train was in charge of one gripman and a conductor. The grip car was in front. A steel grip attachment extended down from the grip car through a slot or opening between the rails of the tracks and connected with said underground cable. This grip was operated by the gripman by means of a lever in the grip car. The car would be moved forward by the gripman causing the grip or clutch to fasten onto the underground cable, which would cause the car to move at the same rate of speed as the underground cable. The cars were stopped by releasing this grip and applying brakes. The train was equipped with two brakes, one a ratchet brake which operated on the wheels of the grip car and the other an automatic brake which operated on the wheels of the trail coach. The ratchet brake would begin to operate as soon as applied, but the automatic brake would not begin to operate until four or five feet of slack was taken out of the chain. Just prior to the accident the situation was as follows: Defendant, coming from the north, started diagonally to the southeast across the tracks. At this time a west-bound car was between 100 and 150 feet to the east of the plaintiff, and the upgrade or eastbound car, which afterwards struck him, was coming up the grade between 50 and 90 feet to the west of plaintiff. Plaintiff's testimony as to how the accident occurred was as follows:

"I was traveling east, diagonally over Twelfth Street, and I crossed over the north track, or just before I got to the north track I seen a car coming down hill. When I got between the north and the south track, my foot slipped, and I fell down on the south track, and before I could get up the car was over me. I didn't see this car coming. At the time the car struck me I was trying to get up. I think I was on my hands and knees. When the car passed over me, I made a grab at something underneath the car to try and hold myself free from the pavement and I couldn't keep myself up. I could feel my bones break in there, in the arm, and also my face being crushed on the pavement, about five or six seconds after I was struck, I judge. I don't know how long I was able to hold on; seemed a long time. Held up as well as I could for that length of time, but could not hold myself up until the car stopped. At that time was pretty strong for my age and size. * * * I fell while I was between the two tracks. My foot slipped as I was walking along. I don't know what it slipped on. I fell...

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