McElwain v. Dunham

• Decision Date: 10 May 1920
• Docket Number: No. 13115.,13115.
• Citation: 221 S.W. 773
• Parties: McELWAIN v. DUNHAM et al.
• Court: Missouri Court of Appeals

221 S.W. 773

McELWAIN v. DUNHAM et al.

No. 13115.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by Frank W. McElwain against Robert J. Dunham and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Clyde Taylor, of Kansas City, Mo., R. J. Higgins, of Kansas City, Kan., and Charles L. Carr and Norman Woodson, both of Kansas City, Mo., for appellants.

Gage, Ladd & Small and Mertsheimer & Seddon, all of Kansas City, Mo., for respondent.

TRIMBLE, J.

Plaintiff, in his spring wagon having an open box with a large top in front and hitched to a team of horses, was driving east along the south side of Ninth street, about 6:30 p. m., on January 19, 1916. He came to two automobiles parked near the curb, which necessitated his turning out to the north to go by them, and this put his team astride the south rail of the street car track. Just beyond the automobiles the street was torn up, and had been for possibly six weeks, and barricades had been put up. These barricades were a little apart, but too close to permit a wagon and team to pull off of the track, and get upon the street south of the track, and in between the two barricades. As he came to the two automobiles, he looked back to see if a car was coming from the west, and saw a car standing at Indiana avenue, over a block and a half away. He had a red lantern hanging from his wagon. Seeing the car so far away, he drove out, on the track to get by the automobiles, and trotted along at 6 or 7 miles per hour; one horse being between the rails and the other just south of the track. He drove thus for about 150 feet on the east-bound track, when a west-bound car met and passed him on the other track. As, or very shortly after, this car passed him, he reached the second of the barricades and began pulling off the track to again get upon that portion of the street which was south of the track. While watching out for the west-bound car that met and passed him, he did not hear the car he had seen at Indiana avenue coming from the rear upon the track he was on, and just as he was leaving the track the car came up from behind and struck the left rear hub of the wagon. On horse was thrown down and injured so badly as to' be useless, the other was either torn or broke loose and ran away, the wagon and harness were injured and badly broken, and plaintiff was thrown out against a tree in the parking. He brought this action in two counts to recover damages to his property and himself, respectively. The jury found a verdict for plaintiff on both counts, assessing the damages to the property at $200, and upon the other count, for his personal injuries, at $1,000. The defendant has appealed.

The negligence charged was that the defendant allowed the windows in the front vestibule to become so frosted and coated with ice as to obstruct the vision of the motorman; that the car was operated at a high and dangerous rate of speed; that the motorman failed to ring the bell or to give any warning. The answer contained a general denial, and also set up contributory negligence in not looking for a car before going upon the track and in failing to have a lighted red lantern on his wagon.

It will be observed that this does not charge plaintiff with contributory negligence in not looking back after he got upon the track and while he drove along it, and clearly it is only in this regard that any question of contributory negligence could arise under the evidence. However, if as a matter of law plaintiff's own evidence discloses contributory negligence in this last-mentioned regard, then it would operate to defeat his case, even though no contributory negligence was pleaded. But plaintiff's evidence does not disclose contributory negligence as a matter of law. Schafstette v. St. Louis & Meramec River R. Co., 175 Mo. 142, 74 S. W. 826; St. Louis Carbonating & Mfg. Co. v. United Railways Co., 162 Mo. App. 18, 141 S. W. 904; Latson v. St. Louis Transit Co., 192 Mo. 449, 91 S. W. 109; Bruening v. Metropolitan St. Ry. Co., 180 Mo. App. 434, 168 S. W. 248; Id., 181 Mo. App. 264, 168 S. W. 247.

In stating the facts as hereinabove, we have done so from the standpoint of plaintiff's side of the case; the verdict having been in favor thereof, thereby giving its sanction to the evidence offered in plaintiff's behalf. According to that evidence, the defendant was guilty of every one of the specifications of negligence mentioned in the petition. The defendant's evidence tended to show that the window was clear of frost or ice; that there was no light on the...