Kinney v. Metropolitan St. Ry. Co.

• Citation: 169 S.W. 23,261 Mo. 97
• Decision Date: 23 July 1914
• Docket Number: No. 16480.,16480.
• Parties: KINNEY v. METROPOLITAN ST. RY. CO.
• Court: United States State Supreme Court of Missouri

169 S.W. 23

261 Mo. 97

KINNEY v. METROPOLITAN ST. RY. CO.

No. 16480.

Supreme Court of Missouri, Division No. 2.

July 23, 1914.

Rehearing Denied July 14, 1914.

1. MASTER AND SERVANT (§ 240)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

As regards the question of contributory negligence of a motorman, injured by his car running into an unseen work car standing on the track, he was not required to slacken his speed because of a car coming in the opposite direction on the parallel track, with the confusing effect of its headlight.

2. MASTER AND SERVANT (§ 289)—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTIONS FOR JURY.

Whether a motorman, injured by his street car running into a work car standing on the track, was guilty of contributory negligence in not seeing the work car, in the absence of a red light on the rear of such car, and in the rain, and with the glare in his face of headlight of another car coming towards him on the parallel track, is a question for the jury.

3. CUSTOMS AND USAGES (§ 18)—NECESSITY OF PLEADING.

For admission, under a petition charging common-law negligence, of a custom, and its nonobservance, as evidence of negligence, the custom need not be pleaded.

4. TRIAL (§ 108½)—CONDUCT OF COUNSEL— VOIR DIRE EXAMINATION.

It is proper, in a servant's action for injury, to ask jurors on their voir dire examination whether they were connected in a business with a certain insurance company, liable to pay any judgment obtained against defendant, and which, through its attorney, was making defense ostensibly for defendant.

5. APPEAL AND ERROR (§ 1060)—DAMAGES (§ 132)—PERSONAL INJURIES—EXCESSIVENESS.

While, it being apparent that under the evidence a verdict for plaintiff would have resulted in any event, improper argument of plaintiff's counsel to prejudice the jury is not reversible error, as it would be in a close case, the verdict, following it, in an action for loss of a leg, will not be allowed to stand for more than $10,000.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Benjamin F. Kinney against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

Action for damages for personal injuries. Verdict for $20,000. There was a compulsory remittitur of $5,000, and a judgment for $15,000, from which defendant has appealed. Plaintiff's age is not shown. He has a wife but no children. He testified that he had lived in Kansas City 25 or 30 years, and had been in the service of the defendant about 5 years as a motorman. He stated that he was experienced in that work. He was acting as a motorman on defendant's car No. 123 at the time of the alleged injury, at about 9:40 p. m., on June 11, 1909. His car was going east on the defendant's line from Kansas City to Independence. The place of the accident was in the country, about 100 feet west from Tullis station and 300 or 400 feet east of Smalley station. It is a double track; the south track was used for cars bound eastward, and the north track for west-bound cars. Those tracks were eight or ten feet apart. They were straight from Smalley to Tullis, and then curved to the northward; there was a moderate upgrade. Beaumont station was a distance of two short blocks eastward from Tullis. There was a cluster of ordinary incandescent lights on the trolley pole at Tullis. The evidence is conflicting as to whether they were burning. Plaintiff testified that they were not. One witness for defendant stated that they were. Plaintiff's car No. 123 was an ordinary trolley car with the usual vestibule inclosed in front with sheet iron waist high to the motorman as he sat on his stool. The windows of the vestibule had three sash, which opened by being dropped. The center and left sash were up and closed. The right-hand sash was down and opened. There was an ordinary incandescent light, and also an arc light, called a "headlight," attached to the front of the vestibule of plaintiff's car. The arc light had a reflector to throw the light ahead along the track.

The injury was caused by a collision between plaintiff's car and a "work car," sometimes called the "mogul." That car was an ordinary box car fitted with a motor, controller, and vestibules similar to those on plaintiff's car. There were doors in each end and also in the middle of both sides. There were windows on both sides, one near each end, but none in the end. There were five 16 candle incandescent lights in a row in the center of the roof inside the car. It had an arc headlight.

Two witnesses for the defendant stated that the car extended 6 inches above the end door, but plaintiff testified that it was about 18 inches above the end door. There were two lanterns lighted and sitting inside of the car on the floor. That car was in charge of Wilbur F. King, who acted as motorman, and with him were Jennings and Walters. That car had preceded plaintiff's car on the same track. There is no evidence showing that plaintiff was aware of its presence ahead of him. Plaintiff's car was going at 10 miles an hour, and he testified that the car could have been stopped in 70 or 80 feet. Defendant's evidence was to the effect that it could have been stopped within 30 or 40 feet. The work car stopped at the place of accident for the purpose of unloading tools and material for track repairs. There was no red light or light of any kind on the rear end of the work car. The rule and custom of defendant required a red light on the rear of all cars at night as a danger signal. The evidence as to such rule and custom was objected to by defendant on the ground that such rule and custom were not pleaded. The objection was overruled.

King testified that he could give no excuse for the absence of that red light. At the trial it was a contested question as to whether the rear door of the work car was open at the time of the accident, and as to whether the lights in that car were then visible to the plaintiff. The plaintiff testified that no lights of any kind were visible on the work car or in it either before or after the collision.

Plaintiff's witness Diamond, a passenger on plaintiff's car, stated that from the inside of the car he could see nothing ahead on account of darkness. Mr. Roberts, another passenger, witness for plaintiff, testified that after the accident he went out of the car and forward so that he stood by the side of plaintiff's car near the front end and saw what appeared to be reflected lights in the work car.

Jennings, one of the crew of the work car and witness for the defendant, said: That, after the car stopped, he was standing leaning out of the door on the north side, looking back at plaintiff's car, which at first was about two blocks away, and said that he supposed it would stop and not run into the work car. That, when it got 50 or 75 feet away, he hallooed, "Look out, the car is going to hit us," and jumped. That Walters was in the west end of the work car, and ran out of the west door with a lantern and got off the car.

King testified that he heard Jennings cry out, and, looking forward, saw the headlight of plaintiff's car through the door of the work car, and that the collision immediately followed.

One Sproul, a passenger, testified for the defendant, stating that he was chewing tobacco, and that between Smalley and the place of the accident he twice put his head out of the window to spit, and saw the light in the work car a block ahead. The evidence shows that it was raining at the time of the collision; there was water upon the windows of the vestibule. The testimony for both sides was to the effect that rain on the windows and on the glass of the headlight served to obscure the vision and light.

King testified:

"Did you have your windows open or closed in front of you? A. I had it open. I started with it closed, but I afterwards dropped it. Q. After you dropped it, did you have any difficulty in running your car on account of the rain? A. No, sir. Q. Why did you drop it? A. Because the heavy mist that was falling gathered on the glass. Q. Could you have let down one on the side. Did you have a side window that you could let down next to the front window? A. Yes, sir; they were there, but they were down when I had started. Q. They were down to start with? A. Yes, sir. Q. Now, do you know whether or not the window in the front of No. 123 could be let down the same as yours? A. Yes, sir; that could be let down."

Mr. Ward, the conductor of plaintiff's car, testified for defendant:

"Q. When there was water on the windows so that you could not see through them, what was the proper thing to do under those circumstances? A. If you could not keep your glass clean in front of you so that you could see through it, the proper way would be to put the window down to the side of you, or, if you could not see that way, the one to the front of you. It has been the custom; most all the boys do that."

The plaintiff did not testify as to whether he looked through the open window on the right-hand side of the vestibule or through the closed window in front of him. He testified that he was looking constantly straight ahead of him, and that as he left Smalley he saw the headlight of a west-bound car at Beaumont, and that such car was from one to four car lengths east of the work car when the collision occurred. The other evidence corroborated his statement as to the west-bound car.

Plaintiff testified that he did not see the work car until he was within 15 or 20 feet of it, and that he then threw off the power and threw on the emergency brake, but the collision followed so quickly that his foot was caught and crushed, requiring amputation about five inches below the knee. He was seven weeks in the hospital. The leg heals at times, and then breaks out again. The surgeon testified that another operation would be necessary to make the wound heal and prepare the leg for an artificial limb. He was out of...