Kiser v. Metropolitan Street Railway Company
| Decision Date | 15 February 1915 |
| Citation | 175 S.W. 98,188 Mo.App. 169 |
| Parties | MINNIE KISER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY and ROBERT J. DUNHAM and FORD F. HARVEY, Receivers, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
Judgment affirmed.
John H Lucas and Chas. N. Sadler for appellants.
(1) Under the United States statutes if any cause of action exists it is under the United States laws and not under the State courts. U. S. Compiled Statutes (1911 Supp.), sec. 1 pp. 1316, 1317, 1322, 1323; Railroad v. Maerkl, 198 F. 1. (2) Plaintiff's husband was guilty of contributory negligence. 29 Cyc. 511; Kelley v. Railroad, 101 Mo 67; Hogan v. Railroad, 150 Mo. 36; Holverson v. Railroad, 157 Mo. 216; Fumalt v. Railroad, 175 Mo. 288; Doerr v. Brewing Co., 176 Mo. 547; Hamlett v. Railroad, 89 Mo.App. 354. (3) The court erred in admitting evidence on behalf of plaintiff. Hahn v. Cotton, 136 Mo. 216; Smith v. City of Sedalia, 152 Mo. 283; Ingles v. Railroad, 145 Mo.App. 241; Glasgow v. Railroad, 191 Mo. 358-366; Taylor v. Railroad, 185 Mo. 255. (4) The court erred in permitting counsel for plaintiff to make improper remarks in his argument to jury. Kinney v. Railroad, 169 S.W. 23; Stetzler v. Railroad, 109 S.W. 666; McDonald v. Cash, 45 Mo.App. 584; Wendell v. Peoples Housefurnishing Co., 165 Mo. 527. (5) The court erred in refusing to sustain motion for new trial. Northrop v. Diggs, 115 Mo.App. 93; Morris v. Kansas City, 117 Mo.App. 303; Lehnick v. Railroad, 118 Mo.App. 611.
Langsdale & Howell for respondent.
(1) Defendants' demurrers were properly overruled. (a) Because the facts do not bring this case within the limits of the Federal Employers' Liability Act. Railroad v. Behrens, Admr., Etc., S.Ct. Rep., June 1, 1914, p. 646, and the authorities therein cited; Thornton on "The Federal Employers' Liability & Safety Appliance Act," p. 53. (b) Plaintiff's husband was not guilty of contributory negligence. Moore v. St. Louis Transit Co., 193 Mo. 411, 418. (2) The instruction given by the court on behalf of plaintiff was properly given. Murphy v. Railroad, 228 Mo. 56, 87; Waite v. Railroad, 168 Mo.App. 160; Winfield v. Wabash, 166 S.W. 1037. (3) The court properly overruled instructions asked by defendants. Moore v. St. Louis Transit Co., 193 Mo. 411, 418; Smith v. Sedalia, 154 Mo. 301-2; Benjamin v. Railroad, 245 Mo. 612; Borders v. St. Ry. Co., 168 Mo.App. 176; Williams v. Lamp Co., 173 Mo. 97; McGrath v. St. Louis Transit Co., 197 Mo. 105-6; Cole v. St. Louis Transit Co., 183 Mo. 93. (4) The court properly admitted the evidence on behalf of plaintiff herein objected to by defendants. Meily v. Railroad, 215 Mo. 589; McAnany v. Henrici, 238 Mo. 113. (5) Counsel for plaintiff made no improper remarks in his argument to the jury. Murphy v. Railroad, 228 Mo. 56.
Plaintiff, the widow of William J. Kiser, deceased sued to recover damages under section 5425, Revised Statutes 1909, for the death of her husband which she alleges was caused by negligence of defendant in the operation of an electric street car on the "Observation Park" line in Kansas City. Kiser met his death by the derailment of the car of which he was conductor and the negligence upon which plaintiff bases her pleaded cause was that of the motorman in attempting to run the car at a high and dangerous rate of speed around a curve in the track. The answer pleads contributory negligence and that plaintiff is without legal capacity to sue, for the reason that the car was being used, and its operators were engaged in interstate commerce at the time of its derailment, and that the cause of action, if any, which arose from the alleged negligence, inured to the personal representative of the deceased and not to his widow. A trial in the circuit court resulted in a verdict for plaintiff in the sum of $ 8000, which afterwards was reduced by a voluntary remittitur, to $ 7500, and judgment was rendered for plaintiff in that sum. Defendants appealed.
The material facts of the case are as follows: The defendants as receivers of the Metropolitan Street Railway Company operate a street railway system covering and connecting the adjacent cities of Kansas City, Missouri, and Kansas City, Kansas. The system consists of a large number of lines, some of which are wholly in Missouri, some wholly in Kansas, and the remainder in both cities. The lines intersect at various places in both cities, so that it is possible by changing cars for a person to travel over the system from any point on any line in one city to any point on any line in the other, for a single fare. A passenger boarding a car intending to transfer to a car on another line at a connecting point may procure a transfer ticket on the payment of his fare to the conductor which entitles him to ride to his destination on the connecting line. The Observation Park line was entirely in Kansas City, Missouri. Its northern terminus was at the old Union Station and its southern at a point two or three miles south, in Missouri, but near the boundary line.
The car in question was going at midnight towards the Union Station and was derailed at a point where the track curves from a westerly course on Fifth street to a southwesterly course on Bluff street. This place is on a high bluff. Fifth street ends at this intersection and immediately beyond the plateau comes to an abrupt end and there is a fall of fifty feet to the level of the bottom lands, the face of the bluff being protected by a stone wall.
There were only three persons on the car, viz., the motorman, conductor, and a passenger going to the Union Station to board a train for Nebraska. As the car approached the curve, the conductor stood in the rear vestibule and the motorman was at his post in the front vestibule. The speed of the car was from twenty to twenty-five miles per hour, and the motorman ran the car into the curve without checking speed, with the result that the car jumped the track, ran straight westward over the curbing and sidewalk and, breaking through the railing at the edge of the bluff, plunged over the wall and fell to the bottom. The motorman and conductor were killed but the passenger escaped death.
From the testimony of the passenger it appears that the car carried very few passengers on that trip, that the stops it made were brief, and that both motorman and conductor acted hurriedly, as though they were trying to regain lost time. Most of the time the conductor stood in the rear vestibule and when stops were made was prompt in giving the signal to start. But the witness refuted the suggestion in his cross-examination that either motorman or conductor was negligent before reaching the curve at Bluff street. "The car," he said, "came to a full stop each and every time, although they made their stops very short, just long enough for them to get on and off."
As to the speed of the car during the entire trip the witness testified: "
From Broadway to Bluff streets, Fifth street practically is level and there is no evidence that the motorman was negligent in running at twenty or twenty-five miles per hour along that street at midnight, but there is evidence, introduced by plaintiff, tending to show that it was negligent and even reckless to run into a curve of the kind in question at a higher speed than four or five miles per hour and without shutting off the power. Further it appears that the speed could have been reduced from twenty-five to five miles per hour in a distance of about seventy-five feet. The position of defendants on the issue of contributory negligence is that under the rules in force, the conductor was in control of the car and being in a position to have it stopped by the motorman on his signal, was himself negligent in not giving such signal when he knew, or should have known, that the motorman was not reducing speed for the curve. The evidence on this issue in its aspect most favorable to the cause of action tends to show that while the motorman was bound by the rules to stop the car on the signal of the conductor and not to start without a signal, the primary duty was on him to regulate the speed and to run the car on schedule time. The conductor could have had the car stopped at any place by giving the emergency signal but it is reasonable to infer that such signal was not intended to be given except in emergencies and not as a means merely for regulating the speed to suit the wishes of the conductor.
It is our opinion that the evidence would not justify us in holding that the conductor was guilty in law of contributory negligence. The negligence of the motorman is clearly shown but it did not begin until the car reached a point seventy-five feet from the curve and consisted of his failure to begin reducing speed for the curve. The car had not been negligently handled up to that point and no occasion had arisen for the conductor to warn the motorman that he was running at too high speed. Certainly he had no reason to resort to the drastic remedy of an emergency signal before the appearance of negligence on the part...
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