McNamara v. Metropolitan St. Ry. Co.

• Decision Date: 16 November 1908
• Citation: 133 Mo. App. 645,114 S.W. 50
• Parties: McNAMARA v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

114 S.W. 50

133 Mo. App. 645

McNAMARA v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

Rehearing Denied December 7, 1908.

1. STREET RAILROADS (§ 117) — COLLISION WITH VEHICLE — ACTIONS — QUESTIONS FOR JURY—DISCOVERED PERIL.

In an action for injuries from the collision of a cable train with plaintiff's wagon, whether defendant's gripman exercised reasonable care to discover plaintiff's peril, and to avoid injury, by stopping the train and by giving warning signals, held to be for the jury.

2. STREET RAILROADS (§ 102)—OPERATION—DUTY TO KEEP LOOKOUT.

To run a cable train in a public street, in a populous section of a city, without keeping a close lookout partakes of the nature of wantonness, and, when injury follows, engrosses the entire field of culpability, and eliminates contributory negligence as a factor in the production of the injury.

3. DAMAGES (§ 132)—INJURIES TO PERSON—EXCESSIVE DAMAGES.

Plaintiff, injured in collision with a cable train, sustained a cut in his ear necessitating the taking of seven stitches therein. He was cut and bruised about the shoulders and body, and was laid up for a month. A severe case of varicocele then developed as a direct result of the injury, from which he will never recover, unless he submits to a somewhat dangerous surgical operation. Held, that $2,000 damages was not excessive.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Personal injury action by John McNamara against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas and F. G. Johnson, for appellant. Boyle, Guthrie & Smith, for respondent.

JOHNSON, J.

Plaintiff received personal injuries in a collision between a wagon in which he was riding, on a public street in Kansas City, and a cable train operated by defendant, a street railway company, on its Twelfth street line in that city. He sued to recover damages sustained, alleging that his injuries were caused by the negligence of defendant in failing "to stop its train when it saw, or by the exercise of due care should have seen, plaintiff in a position of peril in time to have stopped its train and prevented said collision by the exercise of due care." The answer contains a general denial, and an allegation "that if plaintiff received any injuries at the time mentioned in the petition, the same were caused by plaintiff's own fault and negligence." The trial resulted in a judgment for plaintiff in the sum of $2,000, and the cause is here on the appeal of defendant.

The first questions to receive our attention are those arising from the contention of defendant that the jury should have been instructed peremptorily to return a verdict in its favor. The injury occurred at about 2 o'clock p. m., June 9, 1902, on Twelfth street in the middle of the block between Troost avenue and Harrison street. The course of Twelfth street is east and west, that of the other mentioned streets north and south. Defendant's railway line on Twelfth street consisted of two tracks laid in the middle of the street, the north track being used for westbound trains, the other for trains going east. The train that collided with plaintiff's wagon was west bound, and consisted of a grip car and trailer, the entire train being about 43 feet in length. Plaintiff, then 18 years old, was driving a one-horse covered delivery wagon for a grocer, whose place of business was on the north side of Twelfth street, and west of an alley which ran north and south through the middle of the block between Harrison street and Troost avenue. He drove on to Twelfth street from the alley, with the intention of making a turn that would bring the wagon in front of the store with the horse headed to the east. The distance from the property line on the north side of the street to the curb was 11½ feet, and from the curb to defendant's first track, 10 1/6 feet. To make the contemplated turn it was necessary for plaintiff to drive southward from the mouth of the alley onto and, perhaps, across, the track. The length of the horse and wagon was 17 feet. Plaintiff sat in the seat in the front end of the wagon, and when he reached the property line had nothing to obstruct his view of Twelfth street in either direction, except the wagon cover which, however, did not prevent him seeing as far to the east as Troost avenue. The distance between the east line of the alley and the west line of Troost avenue was 143¼ feet. Plaintiff testified that he drove out of the alley in a walk, and that when he reached the property line he looked to the east and west, saw the cable train standing still at the west side of Troost avenue, and, deeming that he had ample time in which to make his turn, drove onto the track. The horse and the front end of the wagon cleared the crossing, but the grip car ran into the rear end of the wagon and plaintiff was injured. Plaintiff's employer, an eyewitness, testified: "I was looking out of the window that the car should not come down the hill while he was coming out, and he came out when the car was standing still at Troost avenue, and I suppose he saw me watching him. And he came slowly out of the alley, and the car wasn't in motion, it was standing still on the corner, and he came across, and when he was pretty near across the first track and on the second track, the car was coming...