Kinlen v. Metropolitan St. Ry. Co.

Citation216 Mo. 145,115 S.W. 523
PartiesKINLEN v. METROPOLITAN ST. RY. CO.
Decision Date23 December 1908
CourtUnited States State Supreme Court of Missouri

In an action against a street railroad company for running over plaintiff's intestate, several eyewitnesses to the accident testified that the car which ran onto the buggy in which decedent was driving ahead of it was a considerable distance behind the buggy just before the accident, varying from 50 to 100 feet or more, and that the motorman, without seeming to try to stop, was looking elsewhere and not straight ahead, and did not sound any alarm, and that when the buggy was struck it was pulling off the track, though one or both of the hind wheels were sliding thereon. The other occupant of the buggy testified that the accident occurred about the center of the block, and that the decedent drove on the track for about 200 feet in order to pass loaded teams approaching, and that he did not hear any bell sounded before they were struck. There was also testimony that the car was running about 15 miles an hour and faster than usual, and ran 40 or 50 feet after it struck the buggy, which was moving at a pretty good gait. A motorman familiar with the car testified that, if in proper order, it could have been stopped at 40 or 45 feet running 15 miles per hour. Held sufficient evidence on which to base an instruction that it was the duty of the motorman to exercise reasonable care to keep vigilant watch ahead for persons and vehicles, and if the decedent was in imminent peril of being struck because the buggy was on or approaching the car track, and the motorman saw him in danger, or if by reasonable care would have so seen him, in time to have slackened speed or to have stopped by reasonable care, and thus have avoided injuring him, but negligently failed to do so, and if by reason of the foregoing negligent acts it found the buggy in which decedent was riding was struck, and he was thrown out and under the car and killed, the verdict must be for plaintiff, even though he negligently placed himself in dangerous proximity to the car.

7. TRIAL (§ 191)—INSTRUCTIONS—ASSUMPTION OF FACTS.

An instruction, in an action against a street railway company for the death of a person in a collision, used the following language: "If therefore you find from the evidence that M. L. K. (decedent) was at the time and place in question in a position of imminent peril of being struck by the car mentioned in evidence, and by reason of the fact that the buggy in which he was seated was upon or approaching the track on which said car was running," etc. Held, that it did not assume that he was in a place of danger simply because his buggy was on or near the track, but required the jury to find those facts to be true in the light of other facts and circumstances stated in the instruction.

8. STREET RAILROADS (§ 99)—OPERATION OF CARS — COLLISION — CONTRIBUTORY NEGLIGENCE — DRIVING IN FRONT OF CAR.

If one knowingly drives across a street railroad track in such close proximity to an approaching car as to be struck before he can cross, he is guilty of contributory negligence, and there can be no recovery.

9. STREET RAILROADS (§ 103)—OPERATION OF CARS — COLLISION — CONTRIBUTORY NEGLIGENCE —DRIVING IN FRONT OF CAR—HUMANITARIAN DOCTRINE.

The humanitarian doctrine does not authorize a recovery where a person injured knowingly drives in front of an approaching car when he knows he will not have time to safely cross, but that doctrine only applies and authorizes a recovery where the injured party is ignorant of or oblivious to the impending danger.

10. TRIAL (§ 252)—INSTRUCTION UNSUPPORTED BY EVIDENCE.

An instruction not warranted by the evidence is properly refused.

11. STREET RAILROADS (§ 113)—COLLISION— ACTION FOR DEATH IN COLLISION — EVIDENCE OF SPEED—APPLICATION TO CASE.

In an action for the death of a person in a collision with a street car, evidence as to the speed of the car should only be considered in determining whether the motorman should have stopped his car sooner than he did.

12. APPEAL AND ERROR (§ 882)—REVIEW—INVITED ERROR.

A party cannot complain on appeal of an instruction in harmony with one requested by himself, or of error in instructions requested.

13. STREET RAILROADS (§ 93) — CARE IN AVOIDING COLLISION — DETERMINATION — MATTERS FOR JURY TO CONSIDER.

In determining whether or not employés in charge of a street car did all in their power to avert injury after discovering a traveler's perilous position, or by ordinary care could have discovered it, it is proper for the jury to consider the speed of the car and whether the bell was rung.

14. APPEAL AND ERROR (§ 215)—OBJECTIONS BELOW—INSTRUCTIONS.

At a former trial of the same case, requested instructions were given in a modified form, and at a subsequent trial of the case the identical instructions in their modified form were handed up in response to a request of the court, and were given in that form without objection or exception. Held, that no error could be predicated thereon, as the court was justified in assuming that the modifications were acquiesced in, and all objections thereto were waived.

15. EVIDENCE (§ 539½)—COMPETENCY OF EXPERTS —DISTANCE IN STOPPING CAR.

A witness who is perfectly familiar with the location and conditions that existed where an accident occurred, and of the kind of car which struck and killed a person injured, and who has been a motorman for five or six years prior thereto, constantly running and stopping similar cars, is qualified as an expert to give his opinion as to the distance within which the car in question could be stopped.

16. TRIAL (§ 82) — SPECIFIC OBJECTIONS TO EVIDENCE—NECESSITY.

Where counsel refuses to make his objections to evidence specific and certain, it is the duty of the court to overrule the same.

17. TRIAL (§ 82) — SPECIFIC OBJECTIONS TO EVIDENCE — NECESSITY — HYPOTHETICAL QUESTIONS.

An objection to a question should specifically inform the court and opposing counsel of the real point of the objection, and in this respect there is no difference between an objection to a hypothetical question and one made to others.

18. STREET RAILROADS (§ 112)—SAFETY OF CARS AND APPLIANCES — PRESUMPTION OF NEGLIGENCE.

The law requires carriers of passengers to furnish safe cars and appliances in which to convey passengers, and requires them to use ordinary care to prevent injuring persons who have equal rights with them on the streets, and the presumption is that a carrier has obeyed the law regarding such matters, and the law will never presume negligence on the carrier's part.

19. NEGLIGENCE (§ 121)—PRESUMPTION.

The law will never presume negligence on the part of any one.

20. EVIDENCE (§ 553)—HYPOTHETICAL QUESTIONS—FACTS WHICH MAY BE ASSUMED.

A hypothetical question properly assumed that at the time of an accident a street car, by which a traveler was struck, and its appliances, were in good condition, as the law required them to be so.

21. APPEAL AND ERROR (§ 1058)—REVIEW— HARMLESS ERROR — EXCLUSION OF EVIDENCE.

No error can be predicated on the sustaining of an objection to an answer of a witness, where the following questions and answers show that the same testimony was admitted in another form.

22. APPEAL AND ERROR (§ 979)—REVIEW— DISCRETION OF TRIAL COURT — WEIGHT OF EVIDENCE.

The question whether a verdict is against the weight of the evidence rests specially in the sound discretion of the trial court, and, if it is not shown that such discretion was abused, the appellate court will not interfere.

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

Action by Elizabeth Kinlen against the Metropolitan Street Railway Company. There was a judgment for plaintiff, and defendant moved for a new trial and in arrest. The motions were overruled, and defendant appeals. Affirmed.

The plaintiff sued the defendant in the circuit court of Jackson county to recover the sum of $5,000 for the alleged negligence in running over and killing her husband, Matthew L. Kinlen, on Grand avenue, in Kansas City, with one of its cars. The trial resulted in a judgment for plaintiff for the amount sued for, and, defendant's motions for a new trial and in arrest of judgment proving unavailing, it duly appealed the cause to ...

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