Michael v. Kansas City Western Ry. Co.

• Decision Date: 22 January 1912
• Citation: 143 S.W. 67
• Parties: MICHAEL v. KANSAS CITY WESTERN RY. CO.
• Court: Missouri Court of Appeals

143 S.W. 67

MICHAEL v. KANSAS CITY WESTERN RY. CO.

Kansas City Court of Appeals. Missouri.

January 22, 1912.

1. STREET RAILROADS (§ 112) — INJURIES TO PERSONS ON STREET — BURDEN OF PROOF — NEGLIGENCE.

The burden is on one suing for injuries caused by collision with a street car to show that his injuries were directly caused by the motorman's negligence.

2. STREET RAILROADS (§ 98) — INJURIES — CONTRIBUTORY NEGLIGENCE.

One injured by the collision of a street car and a wagon cannot recover against the company if he was himself negligent.

3. TORTS (§ 2) — ACTIONS — WHAT LAW GOVERNS.

The law of the state where the personal injuries were received controls in an action brought in another state to recover for such injuries.

4. STREET RAILROADS (§ 85) — INJURIES ON STREETS — INJURIES TO FIREMEN — COLLISION WITH STREET CAR — DUTY OF STREET CAR COMPANY.

While, as a rule, pedestrians, drivers, street cars, and other users of the streets have equal right to the use, city firemen engaged in fighting a fire or on their way thereto are entitled to a right of way over street cars and other users of the streets.

5. STREET RAILROADS (§ 98) — INJURIES TO TRAVELERS — USE OF STREETS — CARE REQUIRED.

Persons crossing a street car track must employ their senses for their own protection until they are across.

6. STREET RAILROADS (§ 90) — INJURY TO TRAVELER — NEGLIGENCE.

Plaintiff was a member of a city fire company, and the hose wagon on which he was, was struck by a street car as it drove out of the engine house. The hosehouse was about 16 feet from the curb, and the street was 40 feet wide; a single track street railroad being in the center. When the wagon galloped out of the hosehouse, a large bell was sounded, which was heard by the motorman of the street car, which was then about 155 feet from the place of the collision and 200 feet from a point directly in front of the firehouse door, and within plain view of the hose wagon, which began to cross the street in a direction slanting toward the car. Both plaintiff and the driver saw the car when they left the hosehouse, and neither looked again until they reached the track, when they saw that a collision was probable. Held, that the motorman was negligent in not stopping or controlling the street car upon hearing the gong and seeing the hose wagon.

7. STREET RAILROADS (§ 117) — INJURY TO TRAVELER — USE OF STREETS — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Whether plaintiff or the driver of the hose wagon was guilty of contributory negligence was a question for the jury.

8. TRIAL (§ 295) — INSTRUCTIONS.

Instructions must be read as a whole.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Dale A. Michael against the Kansas City Western Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Scarritt, Scarritt & Jones, for appellant. Reed, Yates, Mastin & Harvey, for respondent.

JOHNSON, J.

Plaintiff, a fireman employed in the fire department of the city of Leavenworth, Kan., received personal injuries in a collision between a combined hose and chemical wagon on which he was riding and an electric street car operated by defendant, and, claiming that his injuries were caused by the negligence of defendant, instituted this suit to recover the damages he suffered in consequence of his injuries. The answer includes a general denial, a plea of contributory negligence, and a further plea that laws of the state of Kansas preclude a recovery in all cases of personal injury where negligence of the plaintiff contributed to the injury, regardless of the nature of the negligence of the defendant. Doubtless the purpose of this last plea was to interpose a special defense to negligence pleaded in the petition under what is known in this state as the "last chance doctrine," but since the issue of such negligence was abandoned at the trial, and was not submitted to the jury it will not be necessary to bestow further attention upon it. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $5,000, and the cause is here on the appeal of defendant.

The injury occurred in the afternoon of June 13, 1908, on Fifth street between Seneca and Shawnee streets, in Leavenworth. Fifth street runs north and south, and is intersected at right angles by the other two mentioned streets. An east and west alley 14 feet wide bisects the block, and just south of this alley and on the east side of Fifth street is the engine house of the fire department where plaintiff was employed. The house had three large entrances and its front wall was 16 feet from the curb line on the east side of Fifth street. The wagon on which plaintiff was riding emerged from the north door, which was five feet south of the alley. The pavement of Fifth street is 40 feet wide and defendant operated a single-track street railway along its center. Consequently the distance between the doorway of the firehouse and the east rail of the track was between 33 and 34 feet. It was about 200 feet from the doorway to the north line of Seneca street. Fifth street was paved with brick, and the sidewalk space in front of the firehouse was paved with asphalt, and sloped from the building to the street gutter. Plaintiff was 31 years old, and had been employed by the fire department 13 days before the injury. He was being taught the duties of a driver, but had not completed his period of instruction, and was not allowed to drive to a fire. An alarm of fire came in, and plaintiff assisted in hitching the horses to the hose and chemical wagon and jumped on the running board, putting on his coat as the team dashed forward. His foreman did the driving, but sat on the left side of the driver's seat. As soon as plaintiff put on his coat, he seated himself next the driver. The team plunged out of the house on a gallop, and, on account of the narrowness of the street, the slope of the asphalt pavement, and the presence of some vehicles on the east side of the street, the driver, whose course required him to drive north, pointed the team due northwest, intending to cross the street car track to the west side of the street. According to the evidence of plaintiff, a large bell on the firehouse sounded the fire alarm before the wagon emerged from the building, and, as soon as they could see north on Fifth street, both plaintiff and the driver looked and saw a south-bound...