Leapard v. Kansas City Rys. Co.

• Decision Date: 05 May 1919
• Docket Number: No. 13261.,13261.
• Citation: 214 S.W. 268
• Parties: LEAPARD v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

214 S.W. 268

LEAPARD v. KANSAS CITY RYS. CO.

No. 13261.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

On Motion for Rehearing, May 26, 1919.

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

"Not to be officially published."

Action by Elizabeth Leapard against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Reversed.

Richard J. Higgins, of Kansas City, Kan., and Chas. L. Carr and Roscoe P. Conkling, both of Kansas City, Mo., for appellant.

Griffin & Orr, of Kansas City, Mo., for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages alleged to have resulted to her through the negligence of defendant's servants in operating its street cars in Kansas City. She recovered judgment in the trial court.

It appears that defendant's track runs east and west along Thirty-First street, and that plaintiff was riding in an automobile at the invitation of one Lane. She was sitting on the front seat with him. He was driving south on Monroe street. He testified that as they approached Thirty-First street they were traveling at the rate of about 12 miles per hour; that when they got to the north line of the street, which was about 32½ feet from the railway track, he looked to the east and saw a car 267 feet away, coming west. He checked his speed to the rate of 5 or 6 miles an hour and proceeded to cross the street. He did not look again until he got 14 or 18 inches over the north rail of the track. He then looked, and, seeing the car was coming rapidly, stopped and attempted to back off the track, when the collision occurred, throwing plaintiff out and injuring her.

Plaintiff herself testified that she knew the streets in that vicinity well and that the car tracks were on Thirty-First street, that she knew they were approaching that street, and that as they approached there was nothing to obstruct her view, and she could have seen the street car coming if she had looked. She did not warn Lane, or object to his attempt to cross the track, because she had been with him before over the same route, and "I never gave it a thought," and "relied implicitly on Lane," and that she "took no precautions to see for herself if a street car was coming," and that she "did not notice the car until Lane called her attention to it," at which time we have seen the automobile had crossed the north rail about 14 or 18 inches onto the track.

It is manifest that plaintiff was guilty of contributory negligence, and that defendant's demurrer to the evidence should have been sustained. The rule of imputable negligence does not obtain in this state. Becke v. Railroad, 102 Mo. 544, 13 S. W. 1053, 9 L. R. A. 157; Sluder v. Transit Co., 189 Mo. 107, 139, 88 S. W. 648, 5 L. It. A. (N. S.) 186. It was not allowed in cases involving injuries to infants (Neff v. City of Cameron, 213 Mo. 350, 362, 11 S. W. 1139, 18 L. R. A. [N. S.] 320, 127 Am. St. Rep. 606; Profit v. Railroad, 91 Mo. App. 369, 373-377), nor to a married woman in company with her husband (Munger v. City of Sedalia, 66 Mo. App. 629). Yet, while that is true, the guest has a duty to perform by looking out for himself. In Marsh v. Railroad, 104 Mo. App. 577, 587, 78 S. W. 284, we approved this statement of the law from 3 Elliott on Railroads, § 1174:

"The plaintiff cannot rightfully omit to use care in blind dependence upon another, but must use care proportionate to the danger of which the facts convey knowledge."

In support of that statement we cited Township v. Anderson, 114 Pa. 643, 8 Atl. 379, 60 Am. Rep. 367; Bricknell v. Railroad, 120 N. Y. 200, 24 N. E. 449, 17 Am. St. Rep. 648; Miller v. Railroad, 128 Ind. 97, 27 N. E. 339, 25 Am. St. Rep. 416; Dean v. Railroad, 129 Pa. 514, 18 Atl. 718, 6 L. R. A. 143, 15 Am. St. Rep. 733. Since our decision in the Marsh Case the question was considered by the St. Louis Court of Appeals in Fechley v. Traction Co., 119 Mo. App. 358, 367, 96 S. W. 421, and by this court in Burton v. Pryor 198 S. W. 1117, and that view adopted.

Plaintiff seeks to avoid the force of the law, as applied to her own repeated statements in testimony, by laying down the premise that Lane could not be said to be guilty of contributory negligence, as a matter of law, when he attempted to cross the track as above described, and that, if she had looked, she would only have seen what Lane saw, and would only have acted as he acted, and therefore she could not be said to be guilty of contributory negligence as a matter of law. This is a singular deduction. It by no means follows that plaintiff, as a reasonable woman, would have taken the hazard that Lane did. We have no right to assume that, if she had...