Lane v. Kansas City Rys. Co.

• Citation: 228 S.W. 870
• Parties: LANE v. KANSAS CITY RYS. CO.
• Decision Date: 13 December 1920
• Court: Court of Appeal of Missouri (US)

228 S.W. 870

LANE v. KANSAS CITY RYS. CO.

Kansas City Court of Appeals. Missouri.

December 13, 1920.

Rehearing Denied February 7, 1921.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Harry S. Lane against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, and L. T. Dryden, of Independence, for appellant. E. C. Hamilton and A. R. McClanahan, both of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages by reason of one of defendant's street cars colliding with plaintiff's automobile while he, accompanied by a woman companion, was attempting to cross over the track laid in one of defendant's streets in Kansas City. The petition is in two counts, the first based on plaintiff being in the exercise of due care, and the second on the humanitarian doctrine. At the trial plaintiff abandoned the first count, and the case was tried on the theory of the humanitarian rule. That plaintiff was guilty of negligence is made clear by his own testimony, for he stated that, though he saw a car coming less than 300 feet away when he was just entering the street 32½ feet from the track, yet he drove slowly to the track, without again looking until he had the front wheels of his machine 14 or 18 inches over the north rail, when he looked and found the car was practically upon him. Kelsey v. Railroad, 129 Mo. 362, 372, 30 S. W. 339; Schmidt v. Railroad, 191 Mo. 215, 229, 232, 234, 90 S. W. 136, 3 L. R. A. (N. S.) 196i Laun v. Railroad, 216 Mo. 563, 580, 116 S. W. 553; Burke v. Traction Co., 198 Pa. 497, 499, 48 Atl. 470.

So the only question in the case is, admitting plaintiff's negligence in getting himself into the situation he and other witnesses describe, did defendant's motorman see him in his position of peril on the track, or might he have seen him if he had been exercising ordinary care, in time to have avoided the collision by stopping the car? This proposition was correctly submitted to the jury, and the verdict must conclude us, unless there was no substantial evidence to support that hypothesis.

We think there was abundant evidence tending to show that the motorman either saw or could have seen plaintiff on the track in time to have stopped the car. Plaintiff himself testified that after he got upon the track he looked and saw the car coming and that he could not get across; that he reversed his engine and held up his hand in signal for the motorman to stop, but he was not looking in front, and when he did turn his head it was too late, as he was "right on him." The motorman testified that he could have stopped, at the rate he was going, in 22 feet. If plaintiff testified to the truth, he was stuck on the track in plain view of the motorman (if he was looking ahead) for a time sufficient for him to observe the street car, to set his brake, reverse his engine, and signal the motorman. This alone was sufficient for the jury to find that the motorman could have stopped the car after he saw plaintiff in his perilous and helpless position. Waddell v. Railway Co., 213 Mo. 8, 16, 111 S. W. 542; Ellis v. Street Railway Co., 234 Mo. 657, 671, 138 S. W. 23. It was shown by other evidence that, when plaintiff came to a stop on the track, the street car was between 140 and 150 feet away; that being ample space in which to have stopped his car and avoided the collision. A case was undoubtedly made for the jury. Whatever bearing Knapp v. Dunham, 195 S. W. 1062, has on the present controversy, we think it against the defendant.

Plaintiff was allowed to prove that a cancer has developed on his back as a result of his injury. This was objected to on the ground it was not pleaded. The charge in the petition is as follows:

"His head was cut, his back was wrenched, and the muscles thereof bruised and lacerated in the lumbar region; that the blood weeds in said lumbar region and immediately above and below the same were torn and injured, causing hemorrhage in the soft tissue of his back thereabout; that the injury to his back aforesaid also extended to the sciatic nerve and the popliteal space near the knee, and to the foot of plaintiff's left leg, resulting in a contraction, twisting, and atrophy of said leg, and inability to place the same squarely upon the ground without pain and effort; that two large knots or contusions or growths have formed on either side of the spine in the neighborhood of the lumbar region; that the lumbar vertebrae have become ankylosed, and stiff, rendering the act of stooping or bending in a normal manner impossible."

It will be seen that a cancer is not alleged, nor is there any allegation of matter from which a cancer would necessarily follow. Until recently the rule as laid down by the Supreme Court permitted evidence of results of injuries which might naturally and commonly follow, and that probably...