Knapp v. Dunham

• Citation: 195 S.W. 1062
• Decision Date: 11 June 1917
• Docket Number: No. 12469.,12469.
• Parties: KNAPP v. DUNHAM et al.
• Court: Court of Appeal of Missouri (US)

195 S.W. 1062

KNAPP v. DUNHAM et al.

No. 12469.

Kansas City Court of Appeals. Missouri.

June 11, 1917.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by Milton Knapp against Robert J. Dunham and others. From judgment for plaintiff, defendants appeal. Reversed and remanded.

Clyde Taylor and Charles A. Stratton, both of Kansas City, for appellants. Handy & Swearingen and W. L. McSpadden, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injuries resulting from a collision with one of defendant's street cars. He recovered judgment in the trial court. It appears that plaintiff was engaged in hauling coal, and while driving a team hitched to a wagon suitable for that purpose, at about 3 o'clock in the afternoon, it became necessary that he cross a viaduct over which defendant's cars ran. He was driving north on the east side of the street and east of defendant's tracks, and at the south end of the viaduct an obstruction made it necessary that he cross over to the west side of the street. Then at the north end of the viaduct, on the west side thereof, was another obstruction which made it necessary that he drive back to the east side, thus crossing defendant's tracks on the viaduct. It was at the last crossing that an approaching street car struck the wagon and injured plaintiff. The case was based and submitted on the theory of the humanitarian doctrine.

The rule in this state is that, if a person purposely attempts to cross a railway track in such close proximity to an approaching car that he knows he cannot do so in safety, if he is hurt in such attempt he cannot recover, even though the driver of the car might have been able to have avoided a collision. Kinlen v. Railroad, 216 Mo. 145, 115 S. W. 523; Pope v. Railroad, 242 Mo. 232, 146 S. W. 790. And it is likewise the rule, as stated in those cases, that, though the driver of the car sees a person in apparent peril in time to have stopped the car, he must also have seen that he was unaware of such peril, or, as it is commonly expressed, was oblivious to such peril. This rule, of course, would not apply to an instance where one, though knowing his position of peril, has unwittingly gotten into it and is unable to extricate himself. Each party cites Ellis v. Street Railway Co., 234 Mo. 657, 138 S. W. 23. The case shows that plaintiff's instruction No. 2 required the jury to find that plaintiff "was...