Logan v. Kansas City Rys. Co

• Decision Date: 11 June 1923
• Docket Number: No. 22130.,22130.
• Citation: Logan v. Kansas City Rys. Co, 253 S.W. 758, 299 Mo. 561 (Mo. 1923)
• Parties: LONGAN v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

253 S.W. 758

299 Mo. 561

LONGAN v.KANSAS CITY RYS. CO.

No. 22130.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Motion for Rehearing Overruled July 14, 1923.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Suit by Lucy E. Longan, for whom Silas Woodson Longan, administrator of the estate of Lucy E. Longan, deceased, was substituted, against the Kansas City Railways Company.Judgment for defendant, and plaintiff appeals.Affirmed.

C. W. Prince, E. A. Harris, and James N. Beery, all of Kansas City, for appellant.

Chas. N. Sadler and Mont T. Prewitt, both of Kansas City, for respondent.

Statement.

RAILEY, C.

The original plaintiff herein, Mrs. Lucy E. Langan, now deceased, when 42 years of age, brought this suit to recover 10,000 as actual damages and $5,000 as punitive damages in the circuit court aforesaid, on account of injuries received by her about 10 p. m. on the 11th day of May, 1916, at Thirty-Fifth street and Woodland avenue, in Kansas City, Mo., as the result of a collision between a west-bound, five-passenger Ford touring car, in which plaintiff was riding, and a north-bound street car.There were three people in the Ford car, consisting of plaintiff, her husband., and their 17 year old daughter, Elizabeth.The automobile was driven by plaintiff's husband, who was seated on the left-hand side in the front seat.His wife occupied the same seat to his right, and the daughter was located in a rear seat.

Thirty-Fifth is a public street, running east and west, and is intersected by Woodland avenue, a public street, running north and south.The Ford car was being driven west on Thirty-Fifth street, and the street car was being operated north on Woodland avenue, there being a double line of street car tracks on Woodland avenue.Street cars traveling north passed over the east track on Woodland avenue, and those going south passed over the west track.The evidence on behalf of plaintiff, as to how the accident happened, is substantially as follows:

That the front of the street car in question was about 70 feet to the south of the place where the automobile was traveling, when it was 10 or 15 feet east of the east street car track, and the street car was traveling 30 to 35 miles an hour; that when the street car was discovered by plaintiff the Ford car was traveling 10 or 15 miles an hour, at which time the driver of the automobile applied the brakes thereof, and It began to slow down.At the time the automobile and street car collided, the automobile was moving "just a couple of miles an hour."Plaintiff's evidence further tends to show that the street car was running between 30 and 35 miles per hour when the collision occurred; that the automobile was traveling a little to the north of the center of Thirty-Fifth street, at the point of collision; that it was raining at the time of collision, and had been drizzling off and on all that afternoon; that it was denominated a "skiddy night"; that there were chains on the automobile, and nonskid tires; that there were skid marks from where they started to where the blur of the skidding stopped, inside of 12 or 15 feet; that the skid marks were east of the rail, which indicated that the collision took place a little to the north of the center of the street; that the front end of the automobile struck the side of the street car, between the middle of sane and the rear wheel thereof; that half of the length of the street car had passed and ran in front of the automobile; that the street car, after the collision, continued to travel north from 75 to 100 feet; that it was upgrade from Thirty-Fifth street north; that the automobile was carried by the street car out of the intersection, thrown against the curbing, and tilted to one side; that a store building was located at the southeast corner of Thirty-Fifth street and Woodland avenue, which obstructed the view to the south, the direction from which the street car was traveling; that there was a "Slow" sign just north of Thirty-Fifth street, and one just south of same; that these signs were hung to the support wires that held the trolley wire, and the word "Slow" was on these signs.

The evidence on behalf of defendant tended to show that about 10 o'clock at night on the 11th day of May, 1916, a north-bound street car on Woodland avenue was crossing Thirty-Fifth street, when an automobile ran into the side of the street car; that the latter was running about 18 miles an hour until it got within about 100 feet of the south side of Thirty-Fifth street, when it was slowed up, and was not running faster than 10 miles per hour; that the street car continued to run 8 to 10 miles an hour, until it reached the center of the intersecting streets, before the power was increased; that as the street car started to cross Thirty-Fifth street the motorman saw the lights of the automobile in question, about a half a block, or about 200 to 250 feet away that the motorman had no idea a collision would occur between his car and the automobile; that when the front end of the street car was in the center of Thirty-Fifth street the automobile was then 60 to 100 feet to the east of the street car; that the front end of the street car ran about a car's length past the center of Thirty-Fifth street, when the automobile hit the street car, colliding with the rear steps of same, which were dented; that the radiator of the automobile was wrecked, and the front wheels bent; that the street car was brought to a standstill within a half to a car's length after the collision occurred; that the automobile in question, under the circumstances aforesaid, going at ten miles an hour, could have been stopped in from one and one-half to ten feet; that the automobile under the same conditions, going fifteen miles an hour, could have been brought to an emergency stop in 10 to 12 feet; that Mrs. Lucy E. Langan, now deceased, at the time of the accident, was thrown to the right, out of her seat, to the door of the automobile, and received substantial injuries.

The case was tried before Judge Seehorn, and the jury returned a verdict in favor of defendant.The original plaintiff, in due time, appealed the cause to this court.While the action was pending here, said Lucy E. Longan died, her death was suggested, and an order made, reviving the cause in the name of Silas Woodson Longan, as administrator of the estate of said Lucy E. Longan, deceased.

Opinion.

I.It is strenuously insisted by respondent that the appeal herein should be dismissed, because appellant's counsel have failed to furnish the courtwith a fair and concise statement of the facts.Section 1511, R. S. 1919, reads as follows:

"On appeals and writs of error each party shall, on or before the day next preceding the day on which the cause is docketed for hearing, make' out and furnish the court with a clear and concise statement of the case, and the points intended to be insisted on in argument."

Rule 15 of this court(228 S. W. viii) has been in existence for many years past, and is found reported in the back part of each Missouri Report, a part of which rule reads as follows:

"The brief for appellant shall distinctly allege the errors committed by the trial court, and shall contain in addition thereto:(1)A fair and concise statement of the facts of the case without reiteration, statements of law, or argument.* * * No brief or statement which violates this rule will be considered by the court."(Italics ours.)

It appears from appellant's abstract of the record that six witnesses testified in behalf of defendant as to material facts in the case, and that the jury returned a verdict in its favor under the evidence.Notwithstanding the above, counsel for appellant have utterly ignored our statute and rule 15, supra.They have neither mentioned the names of any of defendant's witnesses, nor have they set out, or even referred to, the testimony of any of said witnesses, as disclosed by the record.We would be fully justified in dismissing the appeal in this cause, on account of the flagrant disregard of our statute and rule 15, supra, under the previous rulings of this court and those of the Courts of Appeals, some of which are as follows: Snyder v. Free et al., 102 Mo. 325, 14 S. W. 875;...