Jager v. Metropolitan Street Railway Company
| Decision Date | 26 June 1905 |
| Citation | 89 S.W. 62,114 Mo.App. 10 |
| Parties | JOHN JAGER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. H. Dean, Special Judge.
AFFIRMED.
John H Lucas and Ben T. Hardin for appellant.
(1) The court erred in refusing instruction numbered 8, offered by defendant in the nature of a demurrer to all the evidence. The injury to plaintiff was the direct and necessary result of his own gross negligence directly contributing thereto. Kelly v. Railroad, 75 Mo. 140; Maher v Railroad, 64 Mo. 267; Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Moody v. Railroad, 68 Mo. 470; Zimmerman v. Railroad, 71 Mo. 476; Bell v. Railroad, 72 Mo. 50; Purl v Railroad, 72 Mo. 168; Adams v. Railroad, 74 Mo 533; Butts v. Railroad, 98 Mo. 272; Culbertson v. Railroad, 104 Mo. 35; Boyd v. Railroad, 105 Mo. 371; Maxey v. Railroad, 113 Mo. 1; Loring v. Railroad, 128 Mo. 349; Kelsey v. Railroad, 129 Mo. 262; Lane v. Railroad, 132 Mo. 4; Sinclair v. Railroad, 132 Mo. 241; Watson v. Railroad, 133 Mo. 250; Huggert v. Railroad, 134 Mo. 673; Payne v. Railroad, 136 Mo. 562; Vogg v. Railroad, 138 Mo. 172; Kreis v. Railroad, 148 Mo. 321; Kotney v. Railroad, 151 Mo. 35; Holwerson v. Railroad, 157 Mo. 216; Tanner v. Railroad, 161 Mo. 497; Hook v. Railroad, 162 Mo. 569; Van Bach v. Railroad, 171 Mo. 338; Moore v. Lindell Railway Co., 176 Mo. 528; Koons v. Railroad, 178 Mo. 591; Ries v. Transit Co., 179 Mo. 1; McGauley v. Transit Co., 179 Mo. 583; Reno v. Railroad, 180 Mo. 469; Glenville v. Railroad, 51 Mo.App. 629; Smith v. Railroad, 52 Mo.App. 36; Jones v. Barnhart, 63 Mo.App. 501; Lien v. Railroad, 79 Mo.App. 475; Molyneux v. Railroad, 81 Mo.App. 125; Skipton v. Railroad, 82 Mo.App. 143; Killian v. Railroad, 86 Mo.App. 473; Hanselman v. Railroad, 88 Mo.App. 123; Grocer Co. v. Transit Co., 89 Mo.App. 534; Barrie v. Transit Co., 102 Mo.App. 87; Fanning v. Transit Co., 103 Mo.App. 151. (2) There is nothing in the evidence in this cause to bring it within what is known as the "humanitarian" rule, or the "last chance" doctrine. The general rule is that the negligence of the plaintiff, which directly contributes to his own injury, bars his right to recover. Kellny v. Railroad, 101 Mo. 67; Sharp v. Railroad, 161 Mo. 236; Tanner v. Railroad, 161 Mo. 497; Morgan v. Railroad, 159 Mo. 276; Moore v. Railroad, 176 Mo. 528; Koons v. Railroad, 178 Mo. 591; Roenfeldt v. Railroad, 180 Mo. 554. (3) The court erred in giving instruction numbered 1 for the plaintiff. Said instruction is without evidence on which to base it, and is misleading; and it is erroneous for the further reason that the court nowhere told the jury what would constitute negligence. Hinzeman v. Railroad, 182 Mo. 611. (4) The court erred in giving instruction numbered 2 for plaintiff. It is misleading, and calculated to confuse and mystify, instead of to edify, the jury. Hinzeman v. Railroad, 182 Mo. 611; Lee v. Jones, 181 Mo. 291; Carvin v. St. Louis, 151 Mo. 334; Yarnell v. Railroad, 113 Mo. 570. Instruction numbered 3, given for plaintiff, is clearly erroneous. It is in conflict with plaintiff's number 1, which required that plaintiff must have been, exercising reasonable care at the time of the injury. Turner v. Railroad, 78 Mo. 578; Roenfeldt v. Railroad, 180 Mo. 554. (6) There was no evidence that after the motorman saw plaintiff in a position of peril he could have stopped the car in time to have averted the collision. Reno v. Railroad, 180 Mo. 469; Stone v. Hunt, 114 Mo. 166; Wilkerson v. Eilers, 114 Mo. 245; Evans v. Interstate Co., 106 Mo. 50; State v. Hope, 102 Mo. 110; State v. Brown, 145 Mo. 680. (7) Said instruction is also vicious in that it erroneously states that notwithstanding plaintiff's contributory negligence, plaintiff could recover if the motorman could have stopped or slackened the speed of the car and failed to do either. It is settled law in this State that the concurrent negligence of the plaintiff precludes a recovery. Butts v. Railroad, 98 Mo. 272; Boyd v. Railroad, 105 Mo. 371; Watson v. Railroad, 133 Mo. 246; Kreis v. Railroad, 148 Mo. 321; Davies v. Railroad, 159 Mo. 1; Murphy v. Railroad, 153 Mo. 262; Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Moore v. Railroad, 176 Mo. 528; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 180 Mo. 554; Barrie v. Transit Co., 102 Mo.App. 87; Fanning v. Transit Co., 103 Mo.App. 151; Gettys v. Railroad, 103 Mo.App. 564; Killian v. Railroad, 86 Mo.App. 473; Skipton v. Railroad, 82 Mo.App. 143; Lien v. Railroad, 79 Mo.App. 475; Jones v. Barnard, 63 Mo.App. 501; Smith v. Railroad, 52 Mo.App. 36.
F. E. House and Cyrus Crane for respondent.
(1) The rule quoted by appellant in point numbered 1, is only the rule when the facts tending to show contributory negligence are undisputed. "When they are disputed, the question of negligence is one for the jury." Bell v. Railroad, 72 Mo. 57; Williamson v. Fisher, 50 Mo. 198; Cook v. Railway, 63 Mo. 397; Kelley v. Railroad, 70 Mo. 604; Walsh v. Morse, 80 Mo. 568; Berry v. Railroad, 124 Mo. 245; Sely v. Collins, 55 Mo.App. 55, 62; Rice v. Salley, 176, Mo. 107, 145; Kelley v. Railroad, 75 Mo. 140; Maher v. Railroad, 64 Mo. 267; Harlon v. Railroad, 65 Mo. 22; Adams v. Railroad, 74 Mo. 553; Frick v. Railroad, 75 Mo. 595; Warner v. Railroad, 81 Mo. 368; Donohue v. Railroad, 83 Mo. 543; Bergman v. Railroad, 88 Mo. 678; Donohue v. Railroad, 91 Mo. 365; Dunkman v. Railroad, 95 Mo. 244; Kelley v. Railroad, 101 Mo. 67; Hanlon v. Railroad, 104 Mo. 389-391; Fielder v. Railroad, 107 Mo. 645; Czezewska v. Railroad, 121 Mo. 201; Bunyon v. Railroad, 127 Mo. 12; Watson v. Railroad, 133 Mo. 246; Halverson v. Railroad, 157 Mo. 216; Schmidt v. Railroad, 163 Mo. 645; McAndrew v. Railroad, 88 Mo.App. 97; Hutchinson v. Railroad, 88 Mo.App. 376; Klockenbrink v. Railroad, 81 Mo.App. 351; Edwards v. Railroad, 94 Mo.App. 36; Shanks v. Traction Co., 101 Mo.App. 702; Nolle v. Traction Co., 100 Mo.App. 367; Jersey F. D. Co. v. Traction Co., 103 Mo.App. 92. (2) Appellant's statement of the "humanitarian" rule is not correct. Willfulness, wantonness, or recklessness, is not a necessary element of that doctrine. Hinzeman v. Railway, 182 Mo. 611. (3) There is evidence tending to prove that defendant's servants "were at the time carelessly and negligently running said car at an excessively rapid rate of speed." (4) Instruction numbered 2 is clear and plain and declares the law, especially when considered with plaintiff's instruction numbered 5, which defines "ordinary or reasonable care." Heinzle v. Railroad, 182 Mo. 555. (5) Plaintiff's instruction numbered 3 is not in conflict with number 1 given for plaintiff.
"It is alleged in plaintiff's petition that on the 15th day of April, 1903, between the hours of five-thirty and six-thirty in the afternoon, the plaintiff was driving across Main street at the corner of Spring street, in an ordinary rock wagon, drawn by two horses, intending to go south on Main street; and as he was crossing the tracks of the railway on said Main street, a south-bound car of appellant was so carelessly, recklessly and negligently run and operated by appellant, at such an undue and excessively rapid rate of speed, without ringing the bell or giving any other warning of approach, that it was run into and against the wagon in which plaintiff was riding, throwing him violently to the ground, the result of which plaintiff received a broken shoulder blade, an injury to his ankle, and body bruises; that defendant's servants in charge of the car saw plaintiff and his wagon on the track, or by reasonable care could have seen him in time to have avoided injury to him." Defendant's answer was the general denial coupled with the plea of contributory negligence, to which plaintiff filed the usual reply.
The facts, as disclosed by the evidence, are these: Main street in Kansas City runs north and south; Thirty-first and Thirty-second streets run east and west, crossing Main at right angles; between Thirty-first and Thirty-second streets is Spring street which enters into Main street from the east, but does not cross Main street. Main street is eighty feet in width and Spring street is fifty feet; from Thirty-first street southward, it is three hundred feet distant to Spring street; on the southeast corner of Spring and Main streets is situated a drug store running back eastward on the south side of Spring street, and at the north side of the drugstore there is a watering trough, which is sixty-four feet eight inches east of the east rail of defendant's double track railway in Main street; from the west rail of the west track to the curbing on the west side of Main street is twenty-three feet. Said watering trough is forty-two feet east of the curb line on the east side of Main street; and from the property line, or the corner of the drug store, the watering trough is twenty-six feet east. The width of each track is over five feet, and the space between the tracks over five feet.
Plaintiff at the time of his alleged injuries, was sixty-four years old, and was in the business of hauling rock. On the 15th day of April, 1903, the plaintiff, after hauling rock all day, at about six o'clock in the evening, drove from the north, on Main street, turned into Spring street, drove to the trough, watered his horses, and then backed his wagon in a north-westerly direction, in order to make a turn to the right, so he could go on south on Main street. After making the turn, he drove in a southwesterly direction, angling across the street car tracks; as he started to go across the east track, a north-bound car passed, and plaintiff crossed that track behind said north-bound car. When plainti...
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