Legg v. Metropolitan Street Railway Company
| Decision Date | 30 January 1911 |
| Citation | 133 S.W. 1190,154 Mo.App. 290 |
| Parties | LAWSON LEGG, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. G. Porterfield, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John H Lucas for appellant.
Eppstein & Ulman for respondent.
Plaintiff received personal injury by reason of one of defendant's street cars colliding with his horses and wagon as he was driving across the track. He brought this action for damages and recovered judgment in the trial court.
The evidence discloses that defendant's railway was composed of a double track running east and west on one of the streets of Kansas City. Plaintiff was driving north, in a walk, with his team and empty coal wagon. He was clearly guilty of negligence in not looking for the car before attempting to cross over. He checked or slowed up his horses to let a car going east pass by and then immediately proceeded on, coming out from behind this car onto the space between the tracks and then onto the north track, when he was struck by a rapidly moving car bound west. He seeks to justify a refusal of defendant's demurrer to the evidence, on the humanitarian rule. He barely does so. But in view of the fact that there was some evidence tending to show that the motorman could have stopped the car after seeing plaintiff was going upon the track, we cannot say no case was made. Though a motorman in charge of a street car sees one in charge of horses and vehicle approaching the track, he has a right to presume the driver will be governed by ordinary prudence and stop to let the car pass before going upon the track. [Markowitz v. Met. Street Ry Co., 186 Mo. 350, 358, 85 S.W. 351.] This is occurring hourly with street car traffic and it would be outside all reason to require that a car be stopped upon the motorman seeing a vehicle approaching the track. Ordinarily if the car is near-by the driver of the vehicle stops for the car to pass. It sometimes happens that the party approaching the track negligently allows himself to be attracted in some other direction, or is absorbed in such way as to be oblivious to his surroundings. If there is any way where it could reasonably be said that the motorman should have observed that condition, he, of course, could not indulge in the supposition that the party would stop...
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