Martin v. Kansas City Rys. Co.

• Decision Date: 10 June 1918
• Docket Number: No. 12930.,12930.
• Parties: MARTIN v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

204 S.W. 589

MARTIN v. KANSAS CITY RYS. CO.

No. 12930.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by Ferd Martin 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. Yates & Goble, of Kansas City, for respondent.

TRIMBLE, J.

An action for damages growing out of a collision of defendant's street car with a one-horse laundry wagon driven by plaintiff, whereby the car struck the left hind wheel of the wagon, overturning it, and throwing plaintiff to the ground and injuring him. The negligence charged was a violation of the humanitarian rule.

The wagon had a cover thereon with the sides thereof extending forward to the front edge of the driver's seat and the top of the cover extending, as a sort of hood, as far front as the dashboard.

The horse and wagon, headed west, were standing on the north side of East Fifteenth street in Kansas City, about 25 feet west of the northwest corner of Fifteenth and Cherry, a few feet from the north rail of the west-bound street railway track. Plaintiff brought a bundle of laundry out to the wagon and threw it in at the rear. He saw a westbound street car a block away, but, thinking he had plenty of time to cross, got into his seat and turned the horse to the left and south across the tracks proceeding on his way in that direction. He says that, had his horse been going forward on a straight line, he would have traveled about 3 miles per hour, but, it being on a turn, he was going at the rate of one mile per hour. The turn onto the track was made immediately from the spot where the wagon was standing. Before the wagon had entirely passed out of the zone of danger on the south side of the track the car reached the point and caught the rim of the left hind wheel and overturned the wagon as aforesaid. The plaintiff's evidence is that the speed of the car was not slackened, nor was a signal given. There was also evidence in his behalf by a witness on the south side of the street that the horse's head and front feet were getting on the track when the car was approaching Cherry street and was 100 feet away; that the horse was going slow, and the witness, seeing the car was going to strike the wagon, became much alarmed. There was evidence that the car could have been stopped in 50 feet; and the evidence is sufficient to support the inference that, had the speed of the car been slackened, the wagon would have escaped being struck.

Under these circumstances we are unable to see wherein we would be justified in holding that defendant's demurrer to the evidence should have been sustained. The car made no stop at Cherry street, and the motorman must have seen the horse turning toward the track and in danger before its head and front feet actually got upon the rail. It was turning and proceeding slowly with every indication of going across unmindful of the approach of the ear and in danger from the first. So that, no doubt, the jury could find that the motorman should have observed the perilous situation of the plaintiff before the car got within 100 feet of the wagon. There was nothing at all to prevent his seeing.

Plaintiff's instruction No. 1 is not open to the charge that it leaves the jury to find any negligence they chose. It clearly submits the question of whether the motorman saw, or, in the exercise of ordinary care, could have seen, plaintiff's wagon in a position of peril, in reasonable time, by the...