Mather v. Metropolitan Street Railway Company

• Citation: 148 S.W. 383,166 Mo.App. 142
• Parties: JOSEPH MATHER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 27 May 1912
• Court: Kansas Court of Appeals

148 S.W. 383

166 Mo.App. 142

JOSEPH MATHER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 27, 1912

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas and Hogsett & Boyle for appellant.

I. B Kimbrell and W. B. Kelley for respondent.

OPINION

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries received in a collision between a buggy in which he was riding and an electric street car operated by defendant. The petition alleges that the injury was caused by negligence in the operation of the car and includes negligence under the humanitarian rule as one of the causes. The answer is a general denial.

The cause is here on the appeal of defendant from a judgment of $ 2770 recovered by plaintiff in the circuit court. The injury occurred in the morning of February 15, 1910, on Electric street in Independence. The street runs west from the courthouse several blocks and then deflects to the southwest. Defendant operates a double track car line on this street and the injury was inflicted by a westbound car running on the north track.

Plaintiff, who is a physician living in Independence and familiar with the locality in question, was riding westward on Electric street in a single buggy. His driver was doing the driving and, according to the evidence of plaintiff, the buggy was driven over the north rail of the westbound track a distance of over four hundred feet. They overtook a light delivery wagon that was being driven on the north side of the street and had just started to turn a little to the left to pass the wagon when someone called to them that a car was coming from behind and the driver immediately turned the horse to the right behind the delivery wagon to allow the car to go by. The car which was running at a speed of over fifteen miles per hour overtook the buggy before it could be driven from the track and the right side of the front end of the car--not the fender--struck the rear axle of the buggy about midway between the wheels. The impact threw the buggy to the right of the track and threw plaintiff to the pavement inflicting the injuries for which he seeks to recover in this action.

The buggy had a top and neither plaintiff nor the driver looked back to see if a car was approaching and neither knew of the presence of the car until a bystander shouted a warning a moment before the collision. Witnesses introduced by plaintiff say that the bell was not sounded nor did the motorman attempt to reduce speed until after the collision. Defendant's witnesses give a different version of the injury. They say the bell was sounded as the car neared the buggy and that until an instant before the collision the buggy was being driven on the pavement to the right of the track; that suddenly the driver attempted to pass the wagon in front by turning to the left and on to the track right in front of the car and that the car struck the left side of the buggy and threw it off the track.

The court overruled the demurrer to the evidence offered by defendant and at the request of plaintiff gave instructions which submitted no other issue of negligence than that pleaded as a breach of the humanitarian duty defendant owed plaintiff. The principal instruction was as follows: "The court instructs the jury that if you believe from the evidence that the plaintiff, Joseph Mather, was, at the time and place in question, in a position of imminent peril of being struck by the car mentioned in evidence, by reason of the fact that the buggy in which he was seated was upon the track upon which said car was running, and that the motorman saw him in such position of danger, if any, or by the exercise of reasonable care would have so seen him in time to have slackened the speed of said car, or to have stopped the same, and avoided striking and injuring plaintiff, but negligently and carelessly failed to do so; and if you further believe and find from the evidence that by reason of the foregoing careless and negligent acts of said motorman, if you find them to have been careless and negligent, the buggy in which plaintiff was riding was struck and plaintiff was thrown out of the same and injured, then your verdict must be for the plaintiff, even though you believe and find from the evidence that plaintiff negligently placed himself in danger upon the street car track mentioned in the evidence."

Among the instructions given at the request of defendant were the following: "The court instructs the jury that if you find and believe from the evidence that the plaintiff either went upon the track or so close to the same, in front of the moving car when the car was so close to him that it could not be stopped by the exercise of ordinary care before it struck the buggy in which he was riding, your verdict must be for the defendant."

"If the physical facts, as shown by the evidence in this case, and common observation and experience are in conflict with and contrary to the testimony of any witness in this case, then it is your duty to take into consideration such physical facts and common observation and experience, and to disregard the testimony of any such witness in conflict therewith, and contrary thereto, insofar as they so conflict.

"If you believe and find from the evidence that at the time and place in controversy plaintiff could, by the exercise of reasonable and ordinary care, have avoided injury from the car in question, and that he failed to do so, and by reason thereof, he was injured, then your verdict must be for the defendant."

It is argued by counsel for defendant that the court erred in overruling the demurrer to the evidence. Much stress is laid on the theory of the physical impossibility of the account of the injury given in the evidence of plaintiff. It is the idea of counsel that if this heavy, double-trucked street car running from fifteen to twenty miles per hour had struck the rear end of the buggy, it would have...