Marshall v. Kansas City Rys. Co.

• Decision Date: 20 May 1918
• Docket Number: No. 12878.,12878.
• Citation: 205 S.W. 971
• Parties: MARSHALL v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

205 S.W. 971

MARSHALL v. KANSAS CITY RYS. CO.

No. 12878.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

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

"Not to be officially published."

Action by John A. Marshall against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Clyde Taylor and Charles A. Stratton, both of Kansas City, for appellant. Harry R. Freeman and E. H. Gamble, both of Kansas City, for respondent.

TRIMBLE, J.

This is an action under the "humanitarian rule" for personal injuries caused by a street car striking plaintiff while lying, in an epileptic seizure, on the track, which by user had become a pathway for pedestrians requiring the motorman to be on the lookout. The sole charge is that the motorman saw, or by the exercise of reasonable care could have seen, plaintiff in a position of imminent peril on the track in time to have avoided the injury by stopping the car, but negligently failed to do so. The injury occurred on the south or eastbound track of the double-track electric railway between Kansas City and Independence, and on that portion of said line lying between White and Wheeling avenues about 350 feet apart; the latter being east of the former. These avenues run north and south; White avenue crossing the electric line, but Wheeling avenue coming up only to the south side thereof. The tracks between the two are on ground owned by the railway company and not on a public street. It is 10 feet between the two tracks. There was a verdict and judgment for $2,500 in plaintiff's favor, and defendant has appealed.

After leaving his home, plaintiff walked north on White avenue to the railway, and then turned east on it, following the path made in the snow by preceding pedestrians. According to plaintiff's testimony he walked between the rails of the south or east-bound track, and continued thereon without looking back until he was on or very near to Wheeling avenue, and was on the point of looking back to see if a car was coming when an epileptic attack, to which he was subject, came suddenly and without warning upon him, and he fell unconscious with his body north of and outside of the north rail, with his knees drawn up and his legs across the rail. He knew nothing until he found himself lying, injured, between the two tracks. The fender of an east-bound car had struck him and brushed him from the track.

It is contended that there was no evidence to sustain the verdict. The evidence amply tended to show habitual use of the tracks along the above-mentioned portion by the public as a pathway, and for some distance west of White avenue on east to a point beyond Wheeling avenue the tracks were straight and the view unobstructed. The injury occurred about 6:30 a. m. January 7, 1016. Snow was on the ground, and a fine mist, with an occasional large snowflake, was falling at the time, though it is not contended that this was sufficient to interfere with seeing a man, but only tended to make the rails wet. It was light enough so that, with the aid of the snow, the figure of a man could be seen a block away. Under the user established, it was the duty of the motorman to be on the lookout. A police sergeant was riding in the front vestibule at the motorman's side. He was plaintiff's witness, and testified that when the car was about one-third of the way from White to Wheeling avenue he looked straight down the track, to which he had not been paying particular attention before, and saw plaintiff between the rails of the south track, going the same direction the car was. He said plaintiff at that time "must have been half a block, nearly so," away. At some time, not disclosed by the evidence, he remarked to the motorman, "There is a man on the track, you are going to hit him." He further testified that, "just before we got to the man, he went down in a heap across the rail, the north rail of the south-bcund track going east," and lay on his left side, with his knees across the rail and his feet over in the track. He swore that when he spoke to the motorman the latter tried to stop the car, and so far as he knew (he said he was not an expert) did all he could to stop. He says plaintiff fell at a point about; 10 or 12 feet west of the east curbstone of Wheeling avenue. So that if the car was one-third of the 350-foot distance from one avenue to the other, or 110 feet, or a little over, past White avenue, when he first saw plaintiff walking between the rails, then the car must have traveled from this point to the point of collision, or a little over 180 feet, plus a part of the width of Wheeling avenue, after the policeman first saw plaintiff. The width of this avenue Is not shown.

The plaintiff introduced a witness, Nightingale, who testified that plaintiff fell on the south track when the car was 30 or 40 feet away. So that the car may have traveled 140 or 150 feet, plus whatever distance plaintiff had gone past the west edge of Wheeling avenue, between the time the policeman saw plaintiff and the time plaintiff fell. The car was going 20 miles per hour, and, according to plaintiff's expert evidence, it could have been stopped in 120 feet. The motorman says he saw plaintiff when he was 250 or 300 feet away, but he says he was walking between the two tracks, and suddenly, when the car was 70 feet away, he turned to the south and walked directly onto the track, stepping over the north rail when the car was 45 feet away; that as soon as plaintiff turned toward the track he rang the gong, reversed the car, and sanded the rails in an endeavor to stop; that plaintiff collapsed just after stepping over the rail. Plaintiff, however, says that he did not walk between the two tracks, but walked the entire time between the rails on the south track. Plaintiff's witness, Nightingale, says that when he first saw plaintiff he was 150 feet away, and walking between the two tracks, and that at about 130 to 140 feet away he got upon the south track and fell, when the car was 30 or 40 feet away. The policeman at the motorman's side said he had not been paying particular attention to the track, but that when he first saw plaintiff he was nearly a half a block away between the rails on the south track. This would seem to be not inconsistent with Nightingale's statement that plaintiff got on the track 130 to 140 feet in front of the car. The policeman also said that, prior to the time he told the motorman he was going to hit...