McClellan v. Kansas City Public Service Co.

• Decision Date: 20 May 1929
• Docket Number: No. 16637.,16637.
• Citation: 19 S.W.2d 902
• Parties: McCLELLAN v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

19 S.W.2d 902

McCLELLAN v. KANSAS CITY PUBLIC SERVICE CO.

No. 16637.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Rehearing Denied June 10, 1929.

Certiorari Denied August 2, 1929.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

"Not to be officially published."

Action by Birdie McClellan against the Kansas City Public Service Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. L. Carr, Mont T. Prewitt, and E. E. Ball, all of Kansas City, for appellant.

Harry G. Kyle, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $15,000.00, but, as a condition for the overruling of defendant's motion for a new trial, the court required plaintiff to file a remittitur in the sum of $8,000.00. This was done and judgment was entered in favor of plaintiff in the sum of $7,000.00. Defendant has appealed.

Plaintiff was injured between eight and eight-thirty p. m. of the evening of April 4th, 1926, while seated in the rear seat of an automobile parked in front of plaintiff's residence located on the west side of North 27th street, Kansas City, Kansas. The automobile was struck by a south bound street car operated by the receivers of the Kansas City Railways Company. The liability, if any, of the receivers has been assumed by the defendant. Plaintiff was married and about twenty-one years of age at the time of her injury. Mrs. Niswander was the driver of the automobile. She was a friend of plaintiff and had taken plaintiff, the latter's husband and their three children home from a dinner which plaintiff's mother, Mrs. Haller, had given in Kansas City, Missouri. There had been a heavy snow fall and the street car sweepers had swept the snow from the center of the street throwing it against the curbing. Persons living along the street had shoveled the snow into the street so that the snow on the west side of the street along the curb was as high as the top of the wheel of the automobile. The snow was so high as to make it impossible for any-one to get out of the car on its right side. Mrs. Niswander stopped her car headed south in front of plaintiff's home with the right side of the automobile against the pile of snow along the curbing. This snow materially restricted the distance between the curbing and the street car track.

The automobile in question was an enclosed Ford sedan having a front door on either side but no door to the rear seat. Persons seated in the rear were required to get out of one of the front doors. The driver's seat did not turn down so that persons in the back seat would alight from the car through the front door on its right side, though we take it they could get out through the left door with some inconvenience after the driver had moved from her seat. Plaintiff's mother was riding in the front seat on the right side. Plaintiff was seated in the rear seat on the left side and her husband was in the rear seat on the right side. Each one of these three persons held one of plaintiff's children on his or her lap.

Twenty-seventh street is a public street extending north and south in Kansas City, Kansas. The rear of the automobile may have been slightly nearer the street car tracks than the front end but the automobile was practically parallel to the tracks. The automobile had been stopped and remained in the same position four or five minutes before it was struck, during which time the occupants were debating whether Mrs. Niswander and Mrs. Haller should get out and visit awhile in plaintiff's house.

Mrs. Niswander testified that after she stopped her automobile she stood on the left running board and looked to see how far the left rear wheel was from the track. This she judged to be about a foot and thought there was enough clearance for a street car to pass the automobile in safety should one go by. The headlights and the tail light on the automobile were lit, the engine was running and the emergency brake was on while the automobile was standing in the place in question. The street car had an overhang or projection beyond the rails of the track of seventeen or eighteen inches and did not clear the automobile. It approached from the north at a rate of speed of twelve miles per hour and struck the rear end of the automobile without giving any warning. Plaintiff testified that she did not know that the street car was near until the automobile was struck.

The headlights on the street car were lit and the motorman admitted that he saw the automobile 150 to 200 feet away and could have stopped with safety to himself and his passengers within twenty feet under the circumstances. He testified that he did not stop for the reason that the automobile was in the clear and when he approached near thereto it suddenly and without warning backed up into the car.

Plaintiff did not say anything to the driver about moving the automobile during the period of time in which it was stopped in front of her home before the collision.

It is insisted that the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence offered at the close of all the evidence. The case was tried under the Missouri law. One of the grounds of negligence pleaded in the petition is founded upon the humanitarian doctrine and that was the sole theory of recovery submitted to the jury in plaintiff's instructions. However, it is claimed by the defendant that a humanitarian case was not made out. This is not based upon any claim that the motorman did not have time to stop, but it is said that plaintiff:

"Either voluntarily assumed a position so near the rails of the street car track over which the cars were run every few minutes so that the street cars could not pass without inflicting an injury to her, so located or she wholly failed to exercise the legal duty placed on a guest in an automobile of looking out for herself."

If when defendant says that plaintiff voluntarily assumed the position it mentions, it means that she intentionally assumed a position where the street car would strike her, or in other words that she assumed her position for the purpose of being struck by the street car, there is no evidence to support the contention. If defendant means that she negligently assumed this position, then the humanitarian doctrine applies, for one of the main reasons for that doctrine is to permit a plaintiff to recover notwithstanding her negligence. Apparently plaintiff relied upon Mrs. Niswander with reference to locating the car a safe distance from the track. The fact that plaintiff failed to exercise any care in looking out for herself was merely contributory negligence which the humanitarian doctrine excuses under the circumstances. Under the latest decisions of the Supreme Court there is no question but what plaintiff made out a case under the humanitarian theory. In Banks v. Morris & Co., 302 Mo. 254, 266, 257 S. W. 482, 484, the Supreme Court stated:

"The doctrine * * * `proceeds upon the precepts of humanity and of natural justice to the end that every person shall exercise ordinary care for the preservation of another after seeing him in peril or about to become imperiled, when such injury may be averted without injury to others.' Dey v. Railways, 140 Mo. App. 461, 467, 120 S. W. 134. Under this doctrine `the position of peril' is one of the basic facts of liability, it might be denominated the chief one. * * * It is of no consequence what brings about or continues the situation of peril. It may be through the obliviousness of the one imperiled, or through his inability to extricate himself from his environment, or through his efforts to rescue another, or through his sheer hardihood or recklessness. But regardless of what occasions his peril, the law out of its extreme regard for human life makes it the duty of another who sees him in peril to exercise ordinary care to prevent injury or death." (Italics ours.)

Defendant cites a number of cases which turn upon the question as to whether the operator of the agency causing the particular injury had sufficient reason to believe that the person injured would escape or remove from his position of peril in time to have averted the collision. Such a case is that of Butler v. United Rys. Co. of St. Louis, 293 Mo. 259, 238 S. W. 1077, relied upon by the defendant. In that case it was said, loc. cit. 1081 of 238 S. W. (293 Mo. 270):

"As plaintiff was aware of the approach of the car, the motorman was justified in assuming, if he saw her, that she would move to a place of safety, if she was too close to the track for the car to pass without striking her."

In the case at bar defendant has failed to suggest anything that presented itself to the motorman indicating that plaintiff or the automobile was going to move to a place of safety at the time he saw it twenty feet away, which he admitted was in ample time for him to have stopped. Defendant states:

"In the opinion of the writer the defendant owed no greater duty to plaintiff in the case at bar located in the automobile in question than to an intending passenger struck by a street car who did not stand on or try to enter on the track but watched the street car as it approached."

Of course, it is quite evident that plaintiff's position cannot be compared to that of one standing in a position of danger near a street car track intending to become a passenger on an approaching car, because in such case such a person can easily step out of the way of the car, and the motorman, when he sees such a person is not oblivious to his danger but knows of the approach of the car, can assume that the person will get out of the way. In this instance the motorman saw an automobile standing with no rear door. He did not know whether there was any one in the back of the car and had no reason to think that if there was any one in that part of the car he or she...