Markowitz v. Metropolitan St. Ry. Co.

• Decision Date: 22 December 1904
• Parties: MARKOWITZ v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

85 S.W. 351

186 Mo. 350

MARKOWITZ v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 22, 1904.

STREET RAILWAYS—COLLISIONS WITH TEAMS— NEGLIGENCE—CONTRIBUTORY NEGLIGENCE— GROSS NEGLIGENCE—VICARIOUS NEGLIGENCE —HARMLESS ERROR.

1. The negligence of a servant driving his master's wagon is chargeable to the master, who is riding therein, and who is injured by such negligence.

2. A driver of a wagon, who, on emerging from an alley on a clear day, with nothing to obstruct his view for a block, drove immediately in front of, and came into collision with, an approaching street car, which he either saw, or blindly failed to see, was guilty of contributory negligence.

3. A motorman who sees a wagon approaching the track in front of his car has the right to presume that the driver will use his senses in looking for cars.

4. Conceding that the conduct of a motorman in failing to stop his car on seeing a wagon approaching the track in such manner that the driver could see the car raises a question for the jury on the issue of negligence, yet it does not raise the question of such gross negligence or reckless or wanton conduct as to justify the court in submitting the question whether there should be a recovery for injuries to a person on the wagon, resulting from a collision between the car and the wagon, in spite of the driver's own negligence.

5. Where there can be no recovery, even under plaintiff's own evidence, error in instructions is no ground for new trial after verdict for defendant.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Fannie R. Markowitz against the Metropolitan Street Railway Company. From an order granting a new trial, defendant appeals. Reversed.

John H. Lucas, for appellant. Leon Block and Wm. C. Hock, for respondent.

VALLIANT, J.

Plaintiff alleges that she suffered a personal injury in consequence of a collision between a wagon in which she was riding and a street car of defendant. She sues for $5,000 damages, alleging that the collision was the result of defendant's negligence.

The scene of the accident was in Fifth street, between Walnut and Main, in Kansas City. Fifth street runs east and west; Walnut and Main cross it at right angles, running north and south; Walnut is east of Main. Between Walnut and Main streets, and parallel to them, is an alley which also crosses Fifth street at right angles. Defendant operates a double track street railroad along Fifth street; a car going west runs on the north track, crossing Walnut, the alley, and Main street. Just west of the alley on the north side of Fifth street is the city market.

On December 24, 1901, the plaintiff was seated beside the driver, a colored man, on the driver's seat, on an open one-horse spring wagon, driving through the alley northward, aiming for the market house. They emerged from the alley on the south side of Fifth street, drove across the south track, and, just as the front wheel of the wagon got on or sufficiently near the south rail of the north track, a car of defendant going west struck the wagon with a blow sufficient to break the shaft from the axle on that side, and the jar caused the plaintiff's injury. She testified that the car struck the wagon, "and it jolted very hard, and I went on the end of the seat, and that gave me an awful pain in the back, and I felt kind of funny in my whole body. Otherwise I would have went over on the left side on the street, but the colored boy held me back. And he helped me down from the wagon; I couldn't sit there."

The petition alleges negligence in four specifications: "First, the motorman of said defendant in charge of said car negligently failed to stop the same in time to avoid said collision, which by the exercise of ordinary care he might have done. Second, the servants of said defendant in charge of said car negligently failed to ring any bells or to give other warning of the approach of said car. Third, the motorman of said defendant in charge of said car negligently failed to keep a vigilant watch ahead, and negligently failed to observe said wagon on or approaching said north track in a position of danger in time to have stopped said car and thereby avoid said collision, which said motorman might have done had he been exercising ordinary care. Fourth, the motorman of said defendant in charge of said car negligently failed to stop the same within a reasonable time after he saw, or by exercising ordinary care might have seen, the dangerous situation of this plaintiff."

The testimony on the part of the plaintiff tended to prove as follows: It was a clear winter day. The car going west stopped at Walnut street to take on some passengers, and then moved on its course. It was going slowly, not to exceed four miles an hour. The street was crowded with vehicles and people. The wagon on which the plaintiff was riding came out of the alley into Fifth street, aiming northward across the tracks. The driver testified: "When we was coming out through the alley between Walnut and Main we didn't see any car at all; but when we got on the second track we seen the car about as far as from here over there. * * * I couldn't tell exactly how far; but, anyhow, we were beckoning him to stop, * * * for him to hold up, because I couldn't go either forward or back; the people was ahead of me in the crowd, and wagons behind me. * * * He just came right on up and hit the wagon, and broke the shaft loose and jostled us both up." Witness said he did not stop or check up at all when he came into the street from the alley, and was going tolerably fast when he got on the north track; he was aiming to get out of the crowd. The car stopped in almost the same instant that it struck the wagon. It shoved the wagon about two feet. The plaintiff herself testified that they saw no car until they were on the second track—the north track. She said: "It was awfully crowded with people, and we looked, and, of course, I did not see any car at all. Of course, there was so many people in front of us, and we drove right in; and when we got to the second track I saw the car, and hallooed and screamed as much as possible, and it looks to me like there was a car that struck the wagon, and it jolted very hard." She was asked how far the car was from her when she hallooed to the motorman. She said: "About as far as from here to that wall; about twenty-five feet; I couldn't tell you exactly. I began to make motions and to halloo and scream, and the rest of the people right in front of...