Lewis v. Metropolitan St. Ry. Co.

• Decision Date: 06 July 1914
• Docket Number: No. 11218.,11218.
• Citation: 168 S.W. 833,181 Mo. App. 421
• Parties: LEWIS v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Court of Appeals

168 S.W. 833

181 Mo. A. 421

LEWIS v. METROPOLITAN ST. RY. CO. et al.

No. 11218.

Kansas City Court of Appeals. Missouri.

July 6, 1914.

1. STREET RAILROADS (§ 103) — ACCIDENT AT CROSSING — HUMANITARIAN DOCTRINE.

Plaintiff struck while riding in an automobile approaching a street car track, was not entitled to go to the jury unless the motorman, after he knew, or ought to have known, that the automobile was coming into a place of danger, had reasonable time to avoid the collision and negligently failed to do so, and until he had, or ought to have had, reasonable ground to believe that the plaintiff was oblivious of the danger, he was under no obligation to stop or reduce the speed of his car, so that if plaintiff indicated that he was aware of the danger, the motorman might assume that the automobile might stop in a place of safety, and continue the speed of his car until the contrary appeared.

2. STREET RAILROADS (§ 112) — ACCIDENT AT CROSSING — BURDEN OF PROOF — HUMANITARIAN DOCTRINE.

In an action for personal injury by being struck while crossing defendant's track, brought on the ground of the humanitarian doctrine, the plaintiff had the burden of showing that the motorman had time to avoid the collision after notice or plaintiff's danger.

3. STREET RAILROADS (§ 114) — ACCIDENT AT CROSSING — SUFFICIENCY OF EVIDENCE — HUMANITARIAN DOCTRINE.

Evidence in an action for personal injury by being struck while crossing defendant's track, brought on the ground of the humanitarian doctrine, held not to show that the motorman had time to avoid the collision after notice of plaintiff's danger; so that plaintiff could not recover.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Mary E. Lewis against the Metropolitan Street Railway Company, Robert J. Dunham, and another, receivers thereof. Judgment for defendants, and plaintiff appeals. Affirmed.

Edward P. Garnett and Charles V. Garnett, both of Kansas City, for appellant. John H. Lucas and John P. Bramhall, both of Kansas City, for respondents.

TRIMBLE, J.

Plaintiff, in her automobile with two daughters and a chauffeur, was riding west on Twenty-Seventh street. She was in the back seat on the right hand or north side. One daughter sat on her left. The other daughter was in the front seat on the right at the steering wheel, learning to drive. She had had but two hours' previous experience. The chauffeur sat on the front seat on the left of this daughter. There was an understanding between them that whenever the chauffeur laid his hand upon the wheel, the girl was to resign the wheel and exchange seats with him. This would be done by him rising and she sliding along the seat into his place and he seating himself where she had been. Troost avenue runs north and south and crosses Twenty-Seventh street at right angles. There are two street car tracks in the center of Troost avenue, the eastern track being the one used by north-bound cars. As plaintiff's automobile was crossing this track a north-bound street car collided with it, injuring plaintiff and damaging the automobile, for which the present suit is brought in the sum of $2,500. Plaintiff's theory is that she is entitled to recover on the humanitarian doctrine. The trial court, after hearing plaintiff's evidence, sustained a demurrer and instructed the jury to find for defendant. A motion for new trial was filed which the court overruled, and plaintiff has appealed.

As applied to the facts in this case, plaintiff is not entitled to go to the jury unless there is evidence tending to show that after the motorman knew, or ought to have known, that the automobile was going into a place of danger he had reasonable time to avoid the collision, and negligently failed to do so. Until he had, or ought to have had, reasonable grounds to believe that the occupants of the automobile were oblivious to their danger and were going into it, he was under no obligation to stop or reduce the speed of his car. If the occupants of the automobile gave every indication to the motorman that they were aware of the approach of the car and of the danger therefrom, as the automobile approached the track, then the motorman had a perfect right to assume that the automobile would stop in a place of safety, and would not enter into danger on the track, and, having the right to assume that, he was not required to stop or reduce the speed of his car until the contrary became manifest. Now, unless the contrary manifested itself in time to...