Mahany v. Kansas City Rys. Co.

• Decision Date: 07 March 1921
• Docket Number: No. 21776.,21776.
• Parties: MAHANY v. KANSAS CITY RYS. CO. et al.
• Court: Missouri Supreme Court

228 S.W. 821

286 Mo. 601

MAHANY v. KANSAS CITY RYS. CO. et al.

No. 21776.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by O. W. Mahany against the Kansas City Railways Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The petition alleges, among other things, that on April 24, 1917, plaintiff attended a funeral conducted by defendants Newcomer, and was one of the funeral party transported by said defendants, in conducting said funeral; that in consideration of the funeral bill paid to said defendants Newcomer, the plaintiff and other members of said funeral party were to be transported in vehicles by them to and from the cemetery; that after the burial, while plaintiff and the other members of said party were being transported by said defendants Newcomer from the cemetery, as aforesaid, in a large funeral automobile, operated by said defendants Newcomer and their agents, the automobile was driven along the public highway to a certain point near the cemetery, and near the town of Mt. Washington, in Jackson county, Mo., where said highway crosses the system and railway tracks of defendant the Kansas City Railways Company; that then and there a street car, operated by said railways company, and said funeral automobile, in which plaintiff was so riding, approached said intersection about the same time; that by the several and joint negligence and carelessness of said railways company in operating, managing, and controlling said street car, and the defendants Newcomer and their agents and servants in managing, operating, and controlling said funeral automobile, the said street car and said funeral automobile at said time collided and ran together violently and with great force, whereby plaintiff was forcibly hurled against' various portions of said automobile, caused to come in contact with other objects, and was thereby severely and permanently injured. The petition describes in detail the injuries alleged to have been sustained by plaintiff, and charges that he has been damaged to the extent of $50,000, etc. Each of the above-named defendants filed a general denial. The trial was commenced on May 12, 1919, before Judge Bird and a jury.

It is undisputed that the railways company was operating a line of railway between Kansas City and Independence, Mo., and that it was operating the street car which injured plaintiff on April 24, 1917. It is also uncontroverted that the defendants Newcomer were the undertakers conducting said funeral, and that for the consideration paid them plaintiff and the other pallbearers were to be transported to the Mt. Washington Cemetery and return in the automobile of said defendants. It is also uncontroverted that after the funeral plaintiff and about four or five of the above pallbearers were riding in the Newcomer automobile when plaintiff was injured.

The evidence tends to show, that "Mt. Washington Cemetery" is located south of the railway track. At the east end of the cemetery there was a public highway extending north and south, which crossed the railroad track practically at right angles. A short distance west of where the street railroad track crossed said public road there is a covered station on the north side of the railroad track, located about 25 feet west of a post mentioned in the evidence. The front vestibules of street cars going east are usually stopped about at this post, where passengers get on or off the car. It was about 106 feet from the entrance of the cemetery, north to the railroad track. It is about a 4 or 5 per cent. upgrade from the cemetery to the railroad track. The distance by actual measurement from the' post above mentioned to the center of the crossing where plaintiff was injured is 50 or 51 feet. About 90 feet west of said post is a sign, designated as "Mt. Washington." This is where pedestrians get off to go into the cemetery through a gate. The highway runs northeast as it leaves the cemetery, and then runs practically north across the railroad track. The automobile, by reason of said collision, was carried east down the street car track about 26 feet from the center of said highway. It was a Cadillac, a seven-passenger automobile and weighed about 4,000 pounds. The accident occurred about the middle of the day. The street car was traveling east, and the automobile going north, when the collision took place. The east end of the street car struck the automobile near its middle, and carried it the above distance of 26 feet. Plaintiff was injured in the collision, and sued both defendants to recover the damages sustained by him, on account of the alleged negligence of defendants.

In order to avoid repetition, the remainder of the facts will be considered in the opinion.

The instructions given and refused, as well as the rulings of the court during the progress of the trial, will be considered, as far as necessary, in the opinion.

The jury returned a verdict for $30,000 against both defendants, and judgment was rendered accordingly. Defendants filed separate motions for a new trial, and separate motions in arrest of judgment. All of said motions were overruled, and both defendants appealed to this court.

R. J. Higgins, of Kansas City, Kan., and Charles N. Sadler and E. E. Ball, both of Kansas City, Mo., for appellant Kansas City Rys. Co.

J. K. Cubbison and Wm. G. Holt, both of Kansas City, Mo., for appellants Harry 0. Newcomer and others.

Atwood, Wickersham, Hill & Popham, of Kansas City, Mo., for respondent.

BAILEY, C. (after stating the facts as above).

1. Both the railways company and defendants Newcomer are strenuously insisting that the trial court committed error in overruling their respective demurrers to the evidence at the conclusion of the case. As these contentions are not based upon the same evidence, and as the testimony of each tends to shift the responsibility for plaintiff's injuries to the other defendant, it will be necessary to dispose of their respective contentions separately.

2. Before considering either demurrer to the evidence, it is important to determine whether the alleged negligence of the automobile driver was imputable to plaintiff. The latter was sitting on the rear seat of the automobile and on the west side of same from which the on-coming car was approaching. It is undisputed that plaintiff was riding in a hired vehicle, then operated by defendants Newcomer in the course of their undertaking business, and that defendants Newcomer furnished this vehicle and carried plaintiff, with other pallbearers, on account of the consideration which they had received. The plaintiff had no control over the driver of the machine, was not in any way directing his movements at the time and place of accident; and, as the collision occurred in such a short time after the gripman and driver of the machine came in view of each other, we are of the opinion that the alleged negligence of the automobile driver should not be imputed to plaintiff as a matter of law. Moon v. St. Louis Transit Co., 237 Mo. loc. cit. 434, and following, 141 S. W. 870, Ann. Gas. 1913A, 183; Neff v. City of Cameron, 213 Mo. L. R. A. (N. S.) 320, 127 Am. St. Rep. 606; Petersen v. Transit Co., 199 Mo. loc. cit. 341, 97 S. W. 860; Sluder v. Transit Co., 189 Mo. loc. cit. 139, 88 S. W. 648, 5 L. R. A. (N. S.) 186, and following; Becke v. Mo. Pac. Ry. Co., 102 Mo. 544, 13 S. W. 1053, 9 L. R. A. 157; Davies v. City L. & T. Co. (App.) 222 S. W. loc. cit. 885; Lawler v. Montgomery (App.) 217 S. W. loc. cit. 857; Leapard v. K. C. Rys. Co. (App.) 214 S. W. 268, 269; Burton v. Pryor (App.) 198 S. W. loc. cit. 1120; Montague v. M. & K. I. Ry. Co. (App.) 193 S. W. loc. cit. 936; Marsh v. Railroad, 104 Mo. App. loe. cit. 586, 78 S. W. 284; Profit v. C. G. Western Ry. Co., 91 Mo. App. loc. cit. 375; Munger v. City of Sedalia, 66 Mo. App. loc. cit. 631, 632.

3. The defendant railways company insists that it had the right to a clear track, and that 25 or 30 miles per hour was not an unreasonable rate of speed for its car at the time and place of accident. We have examined the cases cited by the railways company, but do not consider that they are applicable to the facts of this case. It may be true that in the country, and in places where the population is sparsely settled, a railroad company, in the operation of its train or cars, in the absence of evidence to the contrary, may proceed upon the theory that its track is clear, and run its cars or trains over same at a rapid rate of speed, unless prohibited by law. The principle just announced, however, has no application to the facts of this case, because there was substantial evidence offered in behalf of plaintiff, tending to show that from the time the automobile left the cemetery until struck by the street car it was in plain view of the motorman. Plaintiff's evidence likewise tended to show that the chauffer, without indicating any intention to stop, proceeded on his journey, at the rate of five miles per hour, toward the crossing, until he occupied a position of peril; that instead of the motorman putting his car under control and slacking his speed so as to avoid a collision, he increased the speed to 25 or 30 miles per hour, and ran his car into the automobile containing plaintiff and other passengers. , The motorman, in justification of his conduct, said he received a signal from the chauffeur, which he understood to be an invitation to come on over the crossing. The chauffeur testified that he gave no signal whatever to the motorman, and he is corroborated as to this fact by at least one, if not more, of the passengers in the automobile. If the jurors believed the chauffeur, then they were justified in finding that the motorman was guilty of negligence in failing to have his car under control, and in increasing the speed of the car to 25 or 30 miles per hour, while the passengers...