Majors v. Kansas City Rys. Co.

• Decision Date: 14 June 1920
• Docket Number: No. 13616.,13616.
• Citation: 228 S.W. 517
• Parties: MAJORS v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

228 S.W. 517

MAJORS v. KANSAS CITY RYS. CO.

No. 13616.

Kansas City Court of Appeals. Missouri.

June 14, 1920.

Rehearing Denied October 1920.

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

"Not to be officially published."

Action by Clarence A. Majors against the Kansas City Railways Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and L. T. Dryden, of Independence, for appellant.

House, Manard, Allen & Johnson, of Kansas City, Mo., for respondent.

ELLISON, P. J.

This action is for damages resulting from personal injury. The judgment in the trial court was for the plaintiff.

There is much statement of facts made by the respective counsel that may be well enough as showing the full history of the collision, but need not be repeated by us. The facts necessary to a solution of the rights of the parties are these: Defendant's street car was standing at the south side of Sixty-Seventh street in Kansas City facing north, while plaintiff and a companion, both of them police officers, were traveling east on Sixty-Seventh street in a police patrol automobile approaching defendant's track which they intended to cross. They were bound for a point further east on an emergency call to make one or more arrests of persons reported to police headquarters as being there. They were traveling rapidly; perhaps, at the rate of 25 miles per hour. They kept a siren constantly sounding loudly as they approached. The evidence tended to show that defendant's employees in charge of the street car saw them coming at a distance of near 400 feet and saw that they intended to cross the track, but with this knowledge, when plaintiff got about 50 feet of the track, they suddenly started the car forward into the street, and the auto collided with it, inflicting the injury of which plaintiff complains. It will be noted that plaintiff was not approaching a track with a car moving thereon, but a track where the car was standing still and which suddenly started up — in front of plaintiff.

The petition was so framed that it contained a charge of negligence in that defendant's servants started the car in violation of a city ordinance directing that cars should stop when they saw and heard a police patrol auto wagon approaching; and omitting the ordinance it contained a charge of negligence in that, while defendant's servants had the car stopped on the south side of Sixty-Seventh street, which was a regular stopping place, and while they saw and heard the police patrol wagon rapidly approaching to cross that street in front of the car, they negligently started the car and thereby collided with the police auto.

During the trial that part of the charge of negligence relating to a violation of the city ordinance was withdrawn, and the court so instructed the jury.

The instructions given at plaintiff's request related to the measure of damages and a definition of "ordinary care" and "negligence." The court gave one of its own motion and it is made a chief point of objection, to the trial; there being four specific points of complaint. The first, that the instruction assumed that the Street car was defendant's car. The record shows that was specifically admitted by defendant...