Jackels v. Kansas City Rys. Co.

• Decision Date: 13 June 1921
• Docket Number: No. 14040.,14040.
• Citation: 231 S.W. 1023
• Parties: JACKELS et al. v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

231 S.W. 1023

JACKELS et al. v. KANSAS CITY RYS. CO.

No. 14040.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Charles F. Jackels and others against the Kansas City Railways Company In justice court. From a judgment for plaintiffs on appeal to the circuit court, defendant appeals. Reversed and remanded for a new trial.

R. J. Higgins, of Kansas City, Kan., and Chas. N. Sadler, Louis R. Weiss, and E. E. Ball, ail of Kansas City, Mo., for appellant.

George D. McIlrath and McIirath & Gregory, all of Kansas City, Mo., for respondents.

THIMBLE, P. J.

This action, originating in a justice's court, was brought to recover damages for injury to an automobile, caused by a street car colliding therewith. It was, on appeal to the circuit court, tried de novo, and plaintiffs recovered judgment in the sum of $174.06, from which defendant appealed to this court.

The automobile was being "demonstrated" to a prospective purchaser, and was being driven west along Brush Creek boulevard and was approaching its intersection with Rockhill road, in Kansas City, Mo., when a southbound street car on said Rockhill road also approached the same intersection. Just north of the north side of the intersection on the street railway track was a "safety stop," at which all cars came to a standstill before proceeding across the boulevard. The driver of the automobile knew of this safety stop and that cars stopped there, and though he saw the car coming, as he approached the crossing, he thought the car would stop at the safety stop; but this time it did not do so, but came steadily on, striking the automobile as it got on the track and injuring it.

The case having originated in the justice's court, there was no other pleading save the petition, which, after setting forth the situation at the said intersection, alleged that the driver of the automobile saw the street car at a point 30 feet or more north of the intersection, and knowing of the safety stop and observing the motorman applied the air brakes to come to a stop there, the automobile driver started on across the tracks ahead of said street car, "having his said automobile under full control at all times and driving the same at a rate of speed of about six miles an hour; that through the gross carelessness, negligence, and unskillfulness of defendant's agent and employé in charge of said street car, or through the gross carelessness, negligence, and unskillfulness of defendant company in not having the brakes on said street car in good working order and condition, said street car failed to come to a stop at said intersection and failed to make the safety stop expected and required of it," etc.

A number of errors are charged to have been committed, any one of which would be sufficient to call for a reversal and remanding of the case. However, the claim that the plaintiffs' own evidence shows contributory negligence so conclusively as to bar their recovery as a matter of law is one that should be disposed of first, for if that be true the other alleged errors need not be noticed.

The evidence of the driver of the automobile is that when he was at a point 40 to 50 feet east of the crossing he saw the car about the same distance north of the street he was in; that the safety stop was 20 feet or a little further north of the crossing or boulevard; that he knew of the safety stop and when the car was still north of the safety stop he saw and heard the motorman apply his brakes and saw the car slow down as if it were going to stop, whereupon he went forward, at a speed he did not know how fast, and when he got within range of being struck by the car it was 5 or 6 feet from him, and his own car stopped right on the track and was struck. The claim that the driver's evidence discloses that he was conclusively guilty of contributory negligence is on the theory that the driver, knowing of the safety stop, merely relied on the motorman's observing his duty to stop there, and hence went on heedless of whether he did or not. Doubtless, if the driver did only that, then he was negligent. Clark v. Chicago, etc., R. Co., 127 Mo. 197, 213, 29 S. W. 1013. But he did more than that. He took care to ascertain that the motorman was going to stop, and, as the car slowed up, he had reason to believe that the safety stop was being observed. It is true, he sai...