King v. Kansas City Rys. Co.

• Decision Date: 24 June 1918
• Docket Number: No. 12951.,12951.
• Citation: 204 S.W. 1129
• Parties: KING v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

204 S.W. 1129

KING v. KANSAS CITY RYS. CO.

No. 12951.

Kansas City Court of Appeals. Missouri.

June 24, 1918.

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

"Not to be officially published."

Action by John A. King against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, for appellant. Brewster, Kelly, Brewster & Buchholz, of Kansas City, for respondent.

TRIMBLE, J.

Defendant appeals from a judgment rendered against it in an action brought to recover damages for alleged personal injuries claimed to have resulted from a collision of a street car with a truck, in which plaintiff was riding and from which he was thrown to the pavement. The petition contained several specifications of negligence, but the case was submitted upon only one charge, namely, that the operatives of the car—

"saw, or by the exercise of ordinary care and diligence on their part could have seen, this plaintiff and the truck on which this plaintiff was riding in a position of imminent peril upon the tracks of the defendants at said place in time to have slackened the speed of said car, or to have stopped the same and thus have prevented the collision and consequent injury to this plaintiff, but the said defendants carelessly, negligently, and unskillfully failed and neglected to stop said car, or to slacken the speed thereof sufficiently to prevent said collision."

The answer was a general denial.

Plaintiff, with a driver by the name of Dobinson, both working for the Cudahy Packing Company, was delivering meat in a motor truck of a 1½-ton capacity. They went about from place to place in the city, and between Kansas City and Independence, delivering meat in large sizes, from 125 to 225 pounds each. Dobinson stayed on the truck and did nothing but drive, and plaintiff carried the pieces in to the customers at the respective points of delivery and attended to the collections and accounts.

Kentucky avenue is a thoroughfare running north and south and defendants' Independence line of double track electric railway runs east and west, crossing the avenue at right angles. Each track is 4 feet 8 inches wide and the two tracks are 10 feet apart. The south track is the east-bound and the north is the west-bound track. Kentucky avenue is macadamized north of the tracks, but south of them it is a dirt road. Where the tracks are, and for some 10 or 12 feet south of them, Kentucky avenue is level, but from this point on south the road runs up a hill of considerable acclivity.

After Dobinson had driven south on Kentucky avenue over the crossing to the top of the hill, where meat was delivered to a customer, the truck was turned north and driven down the hill and over the crossing. Plaintiff was seated on the driver's left, and as the truck passed over the north or westbound track a car coming from the east struck the truck just in front of the right hind wheel, and shoved it violently around to the west. According to plaintiff's own testimony, and other evidence in his behalf, he was thrown out to the northwest, falling on his right shoulder and hip, but more on his face than on his back. Some of his witnesses says he "lit on his stomach"; others say he "lit on his stomach or kind of one side a little bit," with his face downward. In view of the verdict, we must regard him as having been thrown out, rather than that he jumped out after the collision, as some of defendants' evidence seems to imply, if not directly asserting it.

It is urged that the evidence did not make a case, and that the demurrer thereto should have been sustained. This claim is based on several reasons; the first being that, since plaintiff's evidence discloses that he knew a car was coming, he was not oblivious to his danger, and hence the last chance rule cannot apply. It may be well to observe that plaintiff's evidence does not show that when the truck started on the track he was aware of his danger. He was not oblivious to the fact that a car, 300 feet distant from the crossing, was approaching at the time the truck attempted to cross; but he was not aware of the danger of a collision until he was on the track, and then saw that the car had reached a point 75 feet away, and at that rate would be bound to strike the truck before it could get its 14 or 18 foot length out of the danger zone. Neither in the pleadings nor in the evidence was obliviousness an issue. The question was: Did plaintiff get upon the track at a time when the car was so far away that a reasonable man would think he had ample time to cross, and so far away that, after plaintiff's danger became apparent, the motorman had reasonable time, with ordinary care, to slacken the speed, or stop the car, and avoid the collision? This was plaintiff's contention, while defendant's was that the truck came down the hill and drove over the crossing so closely before the car that the motorman had no time to stop. Owing to the roughness of the road over the crossing, the truck went slower and took more time than was expected, and the speed of the car was much greater than was apparent. The two combined resulted in placing plaintiff suddenly and unexpectedly in danger, and if thereafter this danger was apparent to the motorman in time, by the exercise of ordinary care, to avoid the collision, it was his duty to do so. Plaintiff's position, seated under a hood in a slow-moving heavily loaded truck from 14 to 18 feet long, would disclose at once that he...