McGee v. St. Joseph Railway, Light, Heat and Power Company
| Decision Date | 16 January 1911 |
| Citation | 133 S.W. 1194,153 Mo.App. 492 |
| Parties | BLAINE McGEE, Respondent, v. ST. JOSEPH RAILWAY, LIGHT, HEAT and POWER COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
R. A Brown for appellant.
Under the law and evidence plaintiff was not entitled to a verdict and the demurrer offered by the defendant at the close of plaintiff's case, and again at the close of defendant's case, should have been given. Hornstein v. United Railways, 195 Mo. 440; Deane v. Transit Company, 192 Mo. 584; Brockschmidt v. Railroad, 205 Mo. 446; Moore v. Railroad, 176 Mo. 528; Cole v. Railroad, 121 Mo. 613; Hebler v Railroad, 132 Mo.App. 554; Gabriel v. Railroad, 130 Mo.App. 636.
Charles C. Crow and John S. Boyer for respondent.
The court did not err in submitting the case to the jury. The evidence clearly made a case for the judgment of the jury and the demurrer was properly overruled. Waddell v Railroad, 213 Mo. 8; Murphy v. Railroad, 138 Mo.App. 436; Zander v. Railroad, 206 Mo. 464; Cytron v. Transit Co., 205 Mo. 692.
The plaintiff's suit is to recover damages he sustained for an injury he received by reason of the alleged negligence of defendant.
The defendant is a corporation engaged among other things in operating street cars in the city of St. Joseph. On the 10th day of January, 1909, in the nightime, plaintiff who was an employee of a steam railroad company, took passage on one of defendant's cars, being operated on Ninth street. The defendant has two tracks on this street which runs north and south. His destination was south to where the street intersects with Lafayette street. After the car had crossed the latter street and while it had just stopped or was slowing down to stop he got off. Thus far there is no particular dispute as to the testimony, but as to what occurred afterwards the evidence is very conflicting.
As the plaintiff's right to recover depends almost entirely upon the facts that he testified to; we state them to be as follows: He was asked how long it was after he got off the car until he was injured. His answer was: His description of how he became injured is as follows: "I got off on the south side of Lafayette street, and my home is on the north side of Lafayette street, and I started diagonally across the street, across Ninth and Lafayette street and I walked about--as near as I can estimate the distance, thirty-five--between thirty-five and fifty feet, and when I was in the middle of the east track--the cars run north on there--and I was in the middle of the street I heard the buzz or sound of a car, and I turned my head and then as I turned around the car was on me, and I became unconscious; that is all I can remember until I came to in the hospital."
He stated that no bell was rung or gong sounded by the car that struck him, and no warning of any kind given of its approach; that the car he alighted from proceeded on its way south, and that when he started across the tracks he looked down the track and around to see if anything was in his way, but that he did not look particularly to see a car, but to see if anything was going to run over him. He stated that it was a habit of railroad men to keep a lookout. It was shown that the motorman could have seen the plaintiff on the track for a distance of two blocks away. The rate of speed the car was going at the time was shown to be twelve or fifteen miles an hour. The ordinance of the city regulating the duties of a motorman and the rate of speed of the cars was in evidence. The ordinance makes it the duty of the person or corporation to cause the gong on its cars to be sounded in quick succession on approaching any team, carriage or person, and upon approaching any street crossing within the city. The rate of speed within the city limits is not to exceed ten miles an hour.
The evidence of defendant tended to show that plaintiff alighted from the south-bound car near the north line of Lafayette street and while the car was in motion, that he pulled the collar of his coat up around his ears, and ran across the east track directly in front of defendant's north-bound car; that as soon as he came in sight the motorman called to him and did all in his power to stop the car; and that the north-bound car was traveling at a rate of speed not exceeding five or six miles an hour, and the gong was sounded in quick succession as it approached and was passing the southbound car.
The jury returned a verdict for plaintiff for the sum of $ 750 upon which judgment was rendered, and defendant appealed.
At the close of plaintiff's testimony and also at the close of all the testimony in the case the defendant asked the court to direct a verdict for the defendant, which the court refused.
The court among others gave the following instruction at the instance of plaintiff: "The court instructs the jury that if you believe from the evidence in this cause that defendant is the owner of street car tracks and street cars operated in the city of St. Joseph, Missouri, and especially a double track on Ninth street between Olive street and Penn street in said city of St. Joseph; and that defendant operated its cars on said street on January 10th, or early in the morning of the 11th of said month, and that one car was traveling south and another north, and that the plaintiff was a passenger on the car traveling south on said Ninth street and when said car reached a point at or near the south line of Lafayette street, plaintiff left said car and started diagonally northeast across the street where Lafayette and Ninth street intersect; and you further believe from the evidence that there was a car traveling north on the east track of def...
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