Hunt v. Metropolitan St. Ry. Co.

• Decision Date: 24 June 1907
• Citation: 126 Mo. App. 79,103 S.W. 1088
• Parties: HUNT v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

103 S.W. 1088

126 Mo. App. 79

HUNT v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 24, 1907.

1. CARRIERS — STREET RAILWAYS — INJURIES TO PASSENGER — EVIDENCE.

Proof that, while plaintiff was a passenger on one of defendant street railway's cars, it collided with another car on the same track, whereby plaintiff was injured, made out a prima facie case of negligence on defendant's part.

2. SAME — INSTRUCTIONS.

In an action against a street railway for injuries received by plaintiff in a collision, an instruction that, if plaintiff received his injuries as the result of some occurrence which careful men in the situation of defendant's agents would not have reasonably anticipated, then such occurrence is what, in law, is termed an "accident," and defendant was not liable, was misleading; an accident being something unexpected and unavoidable.

3. SAME — EVIDENCE.

In an action against a street railway for injuries received by plaintiff in a collision between

the car on which he was a passenger and another car, evidence examined, and held sufficient to show that a break in an air brake was caused by the collision and was not the cause thereof.

4. SAME — VERDICT — EVIDENCE.

In an action against a street railway for injuries received by plaintiff in a collision between the car in which he was a passenger and another car, a verdict for defendant held against the weight of the evidence.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by William Hunt against the Metropolitan Street Railway Company. From an order granting a new trial, defendant appeals. Affirmed.

John H. Lucas, Ben T. Hardin, and Ben F. White, for appellant. Botsford, Deatherage & Young and Goodwin Creason, for respondent.

BROADDUS, P. J.

The plaintiff claims to have been injured while a passenger on one of defendant's west-bound cars on Eighth street, in Kansas City, Mo. The injury is practically conceded to have been the result of a collision between two of defendant's cars. The charge of negligence is that, "on account of the negligence of the defendant, its agents and employés, said car on which the plaintiff was a passenger collided violently with another of defendant's cars on said north track of said Eighth street, throwing plaintiff violently against a portion of the car on which plaintiff was a passenger." The plaintiff proved that, while he was a passenger on one of defendant's cars, it collided with another car on the same track, whereby he was injured. He thus made out a prima facie case. The defendant introduced evidence tending to show that the collision was an unforeseen accident, which was caused by the bursting of a union in the air brake, which had the effect of letting the air escape, and whereby the persons in charge of the car were deprived of the means of preventing the collision; that the defect in the air brake that caused it to burst was of such a character that it could not have been discovered by inspection. The jury returned a verdict for the defendant, which the court set aside on the motion of the plaintiff, and defendant appealed.

The plaintiff assigned various grounds for a new trial. The court gave as a reason for granting a new trial two of the grounds assigned, viz., that the verdict of the jury was against the weight of the evidence, and that the court erred in giving defendant's instruction numbered 6. Said instruction 6 reads as follows: "When something unusual occurs, but such unusual occurrence is not the result of an unusual act of the defendant, and the defendant has, so far as it is concerned, been pursuing its usual course, which had theretofore been done in safety, then the unusual occurrence is what is called an `accident...