Kinlen v. Metropolitan Street Railway Co.
| Decision Date | 14 January 1909 |
| Parties | ELIZABETH KINLEN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.
Affirmed.
John H Lucas, Frank G. Johnson and Halbert H. McCluer for appellant.
(1) The court erred in not giving defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case and renewed at the conclusion of all the evidence. Hebeler v. Railroad, 112 S.W. 34; Markowitz v. Railroad, 186 Mo. 359; Hogan v Railroad, 150 Mo. 54; Reno v. Railroad, 180 Mo 486; Eppstein v. Railroad, 197 Mo. 733; Van Bach v. Railroad, 171 Mo. 346; Boyd v. Railroad, 105 Mo. 381; Guyer v. Railroad, 174 Mo. 351; Roenfeldt v. Railroad, 180 Mo. 565; Porter v. Railroad, 199 Mo. 99. (2) The court erred in giving each of the following instructions for plaintiff over the defendant's objections as follows: 1P, 2P, 3P and 4P. As to 1P: Cahill v. Railroad, 205 Mo. 406; Cornovski v. Railroad, 207 Mo. 274; Masterson v. Railroad, 204 Mo. 519; Ruchenberg v. Railroad, 161 Mo. 87; Stanley v. Railroad, 114 Mo. 620. (3) The court erred in refusing to give each of the following instructions requested by the defendant as follows: 19, 20, 21, 22 and 23. As to 23: Hogan v. Railroad, 150 Mo. 55. (4) The court erred in giving each of the following instructions on its own motion, as follows: 17 and 18. As to 17: Grout v. Railroad, 125 Mo.App. 561. (5) The court erred in not giving each of the following instructions as requested by defendant as follows: 5D, 8D, 12D, 13D and 16D, and erred in modifying said instructions and giving them and each of them to the jury in their modified form. As to 12D: Feary v. Railroad, 162 Mo. 99; Maxey v. Railroad, 95 Mo.App. 309. As to 16D: Hogan v. Railroad, 150 Mo. 55. (6) The court erred in admitting the following evidence over defendant's objections as follows: First. Evidence of L. E. McGhee as to distance within which car could have been stopped. Russ v. Railroad, 112 Mo. 45; Benjamin v. Railroad, 50 Mo.App. 610. Second. Evidence of J. J. Kopfer as to distance in which car could have been stopped. Ruschenberg v. Railroad, 161 Mo. 70; Mammerberg v. Railroad, 62 Mo.App. 563. (7) The verdict was so much against the evidence that it could only have been reached by bias and prejudice, and should not be permitted to stand.
Walsh & Morrison and Virgil Conkling for respondent.
(1) The demurrer to the evidence was properly overruled. Oates v. Railroad, 168 Mo. 544; Schafstette v. Railroad, 175 Mo. 152; Peterson v. Railroad, 199 Mo. 331; Klockenbrink v. Railroad, 172 Mo. 678; Powers v. Railroad, 202 Mo. 283; White v. Railroad, 202 Mo. 562; McQuade v. Railroad, 200 Mo. 158; Beier v. Railroad, 197 Mo. 215; Latson v. Railroad, 192 Mo. 460; Baxter v. Railroad, 198 Mo. 1; Prendeville v. Railroad, 107 S.W. 452; Linder v. Railroad, 103 Mo.App. 581; Septowski v. Railroad, 102 Mo.App. 119; Zander v. Railroad, 206 Mo. 445; Bakery Co. v. Railroad, 127 Mo.App. 190. (2) There was no error in instructions given on behalf of plaintiff. (a) No assumption of fact in instruction number 1. Geary v. Railroad, 138 Mo. 259; Dammann v. St. Louis, 152 Mo. 198; Phippen v. Railroad, 196 Mo. 348; State v. Grayor, 89 Mo. 605; O'Connell v. Railroad, 106 Mo. 482. (b) The duty of the motorman at common law is properly stated. Sluder v. Railroad, 189 Mo. 107; Septowski v. Railroad, 102 Mo.App. 119; Senn v. Railroad, 108 Mo. 148; Winters v. Railroad, 99 Mo. 517. (3) The court gave defendant's instructions in the form requested at this trial. The modifications made at the former trial were proper, however. See cases cited under point 1 and: Zeis v. Brewing Assn., 205 Mo. 651. (4) There was no error in admission of plaintiff's evidence. Defendant's counsel refused to make definite objections when requested by the court. O'Neill v. Kansas City, 178 Mo. 91; Heinzle v. Railroad, 182 Mo. 555.
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 this court.
As the sufficiency of the pleadings is not challenged, we will omit them from the statement of the case.
Plaintiff's husband was killed on Grand avenue, almost in the center of the block between Twenty-third and Twenty-fourth streets, by being struck by a south-bound car on the west track -- the particulars of which will be shown by the testimony of the witnesses. It was admitted that at the time Kinlen was killed he and plaintiff were husband and wife. The following was the substance of plaintiff's testimony:
Norman C. Hall testified that at the time of the accident he was on the west side of Grand avenue, going north. Mr. Kinlen was killed almost at the center of the block between Twenty-third and Twenty-fourth streets on the west track by a south-bound car. When he first saw the buggy it was on the east side of the street, going south. It started to cross the track in a southwesterly direction. The hind wheel commenced to slide on the track. The car was then 120 [216 Mo. 151] to 125 feet away. No bell was rung or signal of any kind given. The driver was trying to get off the track, which seemed to be a little above the pavement, and the wheels "scooted" on the rail. The motorman did not seem to try to stop the car and it struck the buggy hard and shot it forward on to the horse. Mr. Kinlen was thrown out over Dr. Carl's head and lit on the track. Dr. Carl followed him. Mr. Kinlen went under the car. On cross-examination Mr. Hall stated that when he first noticed the car it was probably fifty to one hundred feet south of Twenty-third street, and the buggy was about two hundred to two hundred and twenty-five feet south of Twenty-third street at that time. The right hind wheel was sliding on the west rail of the west track. On redirect examination he stated that the car was number 636.
Richard W. Montgomery testified that the block from Twenty-third to Twenty-fourth street was 460.9 feet in length. The roadway from curb to curb was sixty-three feet in width, and there is a slight grade up-grade going south, which starts about one hundred feet south of Twenty-third street.
Edwin C. Hodkin testified that at the time Mr. Kinlen was killed he was on Grand avenue a little above Twenty-third street. He saw the buggy going south. He first noticed it passing Twenty-third street. He was about a hundred feet behind the car when it hit the buggy. The buggy got on the track about one hundred and twenty-five feet south of Twenty-third street, and when they tried to get off the track they could not make it. The wheels were sliding on the track, and they were trying to get off. At that time the car was between a hundred and a hundred and twenty-five feet behind the buggy. The car passed him going south and he noticed the motorman looking in a southeasterly direction as he passed. They were putting up a signboard over in that direction. The motorman was not looking straight ahead and didn't sound any alarm, and he didn't see any effort made to check the car. The car hit the buggy a good hard jolt, the seat tipped over and broke off, and the men went out. When he got up there Mr. Kinlen was still under the car. The car ran forty or fifty feet after it struck the buggy. On cross-examination he testified that the car was running about fifteen miles an hour. It did not stop at Twenty-third street. The buggy was moving along at a pretty good gait.
Claude White testified that he was near Twenty-fourth and Grand avenue on the east side of the street. He saw two men going south on the east side across the tracks. He saw the car coming south and hit the buggy hard, the seat fell off and the men were thrown out under the car. When he first saw the buggy on the track the car was about one hundred feet from it, and it kept on coming until it hit the buggy. He noticed the motorman immediately before the buggy was hit, and he was looking east where there were some painters painting a signboard; he was looking right at this signboard, apparently. Witness was walking north and the car and buggy were coming towards him. The front right wheel of the buggy was off the track, but the hind wheel was sliding on the rail. While the car was running one hundred feet before it struck the buggy no bell was rung or warning given. On cross-examination he stated that when he first saw the danger to the men he stopped there to watch. On redirect examination he stated that it was a dry, dusty and hot day and the sun was shining. The motorman stopped when he tipped the buggy. He was looking east until the time he hit the buggy.
L. E McGhee testified that he had previously worked for the Metropolitan Street Railway Company for about two years, and was familiar with the equipment of car number 636 on July 18, 1903; that he had run on the old Lindell in St. Louis about two years and on the St. Louis & Suburban in St. Louis about three years as motorman; that he had operated cars exactly like car number 636, and belonging to the same series; that that car running south on Grand avenue between Twenty-third and Twenty-fourth streets at the rate of fifteen miles an hour on a clear, dry, dusty day, with the equipment in proper order, could be stopped by a reasonably skillful motorman, having due regard for the safety of the passengers on the car, after he saw a person or object in a...
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