Lilly v. Kansas City Rys. Co.

• Decision Date: 27 January 1919
• Docket Number: No. 13160.,13160.
• Citation: Lilly v. Kansas City Rys. Co., 209 S.W. 969 (Mo. App. 1919)
• Parties: LILLY v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

209 S.W. 969

LILLY v. KANSAS CITY RYS. CO.

No. 13160.

Kansas City Court of Appeals. Missouri.

January 27, 1919.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by John T. Lilly 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. Clay C. Rogers and C. W. Prince, both of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment for damages on account of personal injuries suffered by him as the result of being struck by one of defendant's street cars on the 5th day of September, 1916.

Defendant's first point is that its demurrer to the evidence should have been sustained.

The facts show that plaintiff on the day in question was employed by a paving company which was repairing the asphalt street adjoining the street car tracks. The accident happened in broad daylight, about 5:30 o'clock p. m. of that day. There was a barricade immediately outside of the outer track of defendant's south-bound tracks on Prospect avenue, in Kansas City, Mo., about one-half a block between Twenty-Ninth and Thirtieth streets. Plaintiff was removing this barricade from out of the path of a steam roller. He knew that cars ran every few minutes over the street. In order to remove this barricade it was necessary for him to go close to the street car track. Before stooping down to pick up the barricade he looked for cars and saw none. He could see no farther than Twenty-Ninth street, a half block away, on account of a vehicle crossing it at right angles and going over defendant's south-bound tracks. What he did then is best described in his own language, as follows:

"* * * I walked over and reached down for this barricade to move it, and in doing this, it was old lumber, and had nails and things in it, and kind of hung there; it took me some little time to take it out; and while I was stooped over there, the front step of the car struck me on this lower limb there and stood me on my head, and I didn't know anything for several days afterwards."

There was other testimony that plaintiff was in a stooping position for about a half a minute. The car struck him from the rear. There was evidence that the car was going at the rate of 4 or 5 miles an hour for the 90 feet immediately before striking plaintiff and while plaintiff was stooped over. The motorman testified that he stopped the car within 3 feet after he attempted to do so. Another witness testified that the motorman did not sound the gong or do anything to avert the injury until he got from 2 to 5 feet of plaintiff, and that he ran about 60 feet after striking him.

It is defendant's contention that the petition fails to allege a cause of action under the humanitarian or last chance doctrine. The petition alleges that the motorman saw, or could have seen, plaintiff in a dangerous position in time to have warned plaintiff of the approach of the car, and in time to have stopped the car before striking and injuring plaintiff, but it fails to allege that the motorman saw the plaintiff in a position of peril and oblivious thereof. Under the facts in this case it was not necessary for plaintiff to allege the element of obliviousness. The motorman did not testify that he saw plaintiff on the track, or the space which the car would traverse, and thought he would get off. He testified that he saw plaintiff and other men working when he (the motorman) was at Twenty-Ninth street. He said that plaintiff was dragging a heavy board between the car track and the curb and in front of a steam roller. The motorman testified that he did not anticipate a collision, and that he had plenty of room to pass plaintiff without striking him. He also testified that he rang his bell for a half block, as "I was taking no chances." The motorman further testified that the fender and front end of the car and the portion of the car where the front steps would ordinarily be (the motorman claiming there were folding steps on the car, and that they were folded up at the time) passed the plaintiff, and that he (the motorman) looked around and saw plaintiff walk or lunge into the car immediately behind the front portion or vestibule of the same, and that plaintiff thereupon fell and hurt himself slightly.

So the evidence in the case does not contain any inference that the motorman might be excused on the ground that he thought, or had a right to think, that plaintiff was alive to his peril and would get out in time. The motorman claimed that plaintiff was not in peril. The contested issue was, "When did plaintiff get into danger?" after a portion of the car had passed him and he walked into it as defendant claimed, or at a time long enough before the car reached plaintiff in the path of the car to have enabled him (the motorman) to stop or take other measures to avoid the injury. Plaintiff's evidence carried ample inferences that he was not going to get out of the danger, and that the motorman could and should have stopped. There is no evidence anywhere raising an inference that if plaintiff got into danger when plaintiff's evidence said he did, then the want of obliviousness to danger had any influence on the motorman, hence we are justified in saying that obliviousness to peril was not a contested issue in the case. Bybee v. Dunham, 198 S. W. 190, loc. cit. 193; Heryford v. Spitcaufsky, 200 S. W. 123, loc. cit. 125, 126.

Defendant contends that there is no evidence as to the distance within which the car should have been stopped. As before stated, the evidence was that the car was going at the rate of 4 or 5 miles per hour, and the motorman testified that he stopped the car within 3 feet. He had at least 90 feet in which to stop the car after the time that he saw plaintiff in a position of peril before striking him, and the car went 60 feet after he was struck. Under such circumstances expert testimony as to the distance in which the car might have been stopped was unnecessary. Beier v. St. Louis Transit Co., 197 Mo. 215, 94 S. W. 876.

Defendant contends that the way in which plaintiff claims he was injured is contrary to physical laws, because he could not have been struck by the front steps of the car on account of the fact that the fender and front portion of the car passed him without striking him. There is no evidence as to whether the fender and front portion of the car protruded as great a distance outward as the steps, so there is nothing in this contention.

Plaintiff's instruction P-3 followed the allegations of the petition, except it had the jury find that plaintiff was oblivious to his peril, and that the motorman knew, or should have known, of the perilous position of plaintiff. As we have already stated, the element of obliviousness was not pleaded, and defendant says that the instruction fails to follow the cause of action as pleaded, for the reason that it included the element of obliviousness. As stated, the element of obliviousness was not an issue in the case and it was not necessary for plaintiff to have put it in his instruction; but we fail to see any error materially affecting the merits of the case in the inclusion of this element therein. It may have been that plaintiff assumed a greater burden than was necessary, but there was no error in connection with the matter.

Defendant next contends that the court erred in not granting a new trial on the ground of improper argument of plaintiff's counsel to the jury. In his closing argument to the jury plaintiff's counsel questioned the good faith of the defendant and its attorney in defending the case. Objections were made by defendant, and the court overruled them. At the end of the argument the court stated that he had overruled certain objections to the argument, "for the reason that, although the remarks seem caustic and extreme, I thought they were a reasonably fair retort to argument made by Mr. Dryden, which latter argument was not reported."

We are unwilling to convict the lower court of error without some showing on the part of defendant that the argument to which it objected was not a fair answer to one already made by defendant's counsel. The argument made by defendant's counsel is not contained in the bill of exceptions, and we are unable to know what it was, so we take the word of the trial court that what plaintiff's counsel said in his argument was a "fair retort" to the argument made by defendant's counsel. If it was, there was no error in connection with the matter. Cross v. Northern Central Coal Co., 186 S. W. 528.

Defendant next contends that the court erred in requiring defendant to produce certain records kept by it without a compliance with section 1945, R. S. 1909, which provides that a verified petition be presented to the trial court upon which an order may be granted for the production of books and papers. One of the main issues tried was whether or not there was a folding step upon the car which ran into plaintiff as the motorman claimed, the latter testifying that there was such a step, and that the same was folded up. If this was true, plaintiff could not have...