Michael v. Kansas City Western Railway Company

• Citation: 143 S.W. 67,161 Mo.App. 53
• Parties: DALE A. MICHAEL, Respondent, v. KANSAS CITY WESTERN RAILWAY COMPANY, Appellant
• Decision Date: 22 January 1912
• Court: Kansas Court of Appeals

143 S.W. 67

161 Mo.App. 53

DALE A. MICHAEL, Respondent, v. KANSAS CITY WESTERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 22, 1912

Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.

AFFIRMED.

Judgment affirmed.

Scarritt Scarritt & Jones for appellant.

(1) Under the law of Kansas when two persons are riding on the driver's seat of a wagon, one of whom is driving, and are engaged in a common purpose with equal opportunity to see and appreciate the approaching danger from such objects as approaching cars the negligence of the driver is imputable to his companion. Bush v. Railroad, 62 Kan. 709, 64 P 614; Bussey v. Railroad, 66 Kan. 735, 71 P. 261; Railroad v. Holland, 60 Kan. 209, 56 P. 6; Union Railroad v. Adams, 33 Kan. 427, 6 P. 529; Railroad v. Wheelbarger, 75 Kan. 811, 88 P. 531; Honick v. Railroad, 66 Kan. 124, 71 P. 265; Dyerson v. Railroad, 74 Kan. 528, 87 P. 680. (2) Upon the fact found by the trial court that under the Kansas law the driver's negligence is imputable to plaintiff and the other indisputable facts developed by the plaintiff's own testimony, the plaintiff cannot recover because of his contributory negligence. Railroad v. Holland, 60 Kan. 209, 56 P. 6; Railroad v. Wheelbarger, 75 Kan. 811, 88 P. 531; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Sanguinette v. Railroad, 196 Mo. 466; Stotler v. Railroad, 204 Mo. 619; Reno v. Railroad, 180 Mo. 469; R. & E. Co. v. Baker, 126 Ala. 135, 28 So. 87. (3) Street car tracks and steam railroad tracks are equally signs of danger and demand equal prescience and vigilance to secure their own safety on the part of persons crossing such tracts. Burns v. Railroad, 66 Kan. 188, 71 P. 244; Boring v. Railroad, 194 Mo. 541. (4) The plaintiff by not submitting the case to the jury on instructions based on the last chance doctrine is conclusively held to have abandoned that theory and is concluded both in this case and in subsequent cases, if any, from relying upon that theory. Matz v. Railroad, 217 Mo. 275. (5) The language of the instruction predicating plaintiff's recovery on the fact that defendant negligently ran one of its cars at "a high, excessive and dangerous rate of speed considering the time, place and circumstance of the running of the said car," or upon the negligent operation of the car "without having said car under reasonable control, and without keeping a proper lookout ahead to avoid collisions, time, place and circumstances considered," is vague, indefinite and unrestricted, and therefore does not state a principle of legal liability on the part of the defendant. Casey v. Bridge Co., 114 Mo.App. 47; Johnson v. Railroad, 117 Mo.App. 308; Magrane v. Railroad, 183 Mo. 119; Campbell v. Transit Co., 121 Mo.App. 406; Allen v. Transit Co., 183 Mo. 411; Kohr v. Railroad, 117 Mo.App. 302. (6) The verdict is excessive. Haynes v. Trenton, 108 Mo. 123; Adams v. Railroad, 100 Mo. 555; Wood v. Railroad, 88 F. 44.

Reed, Yates, Mastin & Harvey for respondent.

(1) The case was tried upon the theory that the negligence of the foreman and driver Schroeder, if any, was imputable to the plaintiff. This theory was more favorable to appellant than the rule of law warrants. Under the Misouri rule the negligence of the driver of a team is not imputable to a companion riding in the vehicle. Petersen v. Transit Co., 199 Mo. 331; Stotler v. Railroad, 200 Mo. 107; Conner v. Railroad, 149 Mo.App. 689. Even under the Kansas rule the negligence of the driver cannot be imputed to one riding with him, unless the latter had full control of the actions of the driver. Leavenworth v. Hatch, 57 Kan. 60; Busch v. Union Pacific Co., 64 P. 624. In this case the respondent had no control whatever over the driver. The record shows that he was "learning to be a driver as a fireman; that Schroeder, the driver, was the plaintiff's foreman, that respondent had never before made a run to a fire during the thirteen days that he had been connected with the department; that respondent was not allowed to drive because of a lack of familiarity with his position. As we have seen, the neglect of a driver is imputed to one riding in his company only upon the theory that the former has the right to exercise some control; that the relation of principal and agent must exist. And this is the Kansas rule. The neglect of the driver of a hose cart cannot be imputed to another fireman on the wagon with him. So held in every decided fireman case. McKernan v. Railway, 138 Mich. 519, 101 N.W. 812; Land Co. v. Mingea, 89 Ala. 521; same case, S. E. 666, where many authorities are cited and discussed. To the same effect in fire hose cart cases. Burleigh v. Transit Co., 124 Mo.App. 724; Geary v. Railway, 84 App.Div. N. Y. 5410; same case, 82 N.Y.S. 1017; Dole v. Railway, 121 La. 945, 46 So. 929. The negligence of a driver of an ice wagon cannot be imputed to a helper who had no control over horse. Anderson v. Railway, 30 Misc. N. Y. 104. In the Alabama case heretofore cited it is said that the rule holding that the neglect of a driver is to be imputed to a companion does not obtain where the companion rides with the driver without authority to control him in the management of the team. Also see Birmingham Ry. v. Baker, 31 So. 618. There is no plea of contributory negligence as defined by Nephler v. Woodward, 200 Mo. 187. (2) The question of contributory negligence was for the jury, even if the alleged negligence of the foreman and driver is to be imputed to the plaintiff. All of the cases cited in appellant's brief as authority for the point that a demurrer to the evidence should have been sustained because of the contributory negligence of the driver Schroeder, are cases where neither the driver nor the plaintiff looked or listened for the approaching train that caused the injury. Failure to look and listen, under circumstances where to look and listen would have discovered the approaching train before driving upon the track, is held to be negligent as a matter of law in Kansas just as it is in Missouri, and everywhere else. Bussey v. Railroad, 71 P. 261. Even when car is coming at a high rate of speed the driver has the right to assume that the motorman will exercise due care and check car. Buhreus v. Dry Dock E. B. & B. Co., 53 Hun 571; s. c., 26 N.Y.S. 224. (3) The case was not submitted to the jury upon the humanitarian doctrine, nor do we now claim any right to recover upon any such theory of the case. (4) The instructions were as nearly perfect as they can well be made in a case of this character. But two were asked and given on behalf of plaintiff and the first instruction is criticised because, as alleged, certain language quoted therefrom is vague, indefinite and unrestricted, and does not state a principle of legal liability on the part of defendant. Moxley v. Railroad, 123 Mo.App. 84. (5) The verdict is not excessive. No case in appellant's brief is predicated upon an injury comparable to the one involved here, either for seriousness or permanency. Respondent's left leg was broken between the knee and the ankle. The injury was received on June 13, 1908. Upon trial, March 16, 1911, he was still using crutches and had been able to do little or no work since his injury. The injury left the ankle stiff and inclined downward, and the limb was left so much shorter than the other as to require a three and onehalf inch heel on the shoe, and a half-inch sole to facilitate its use. Seventy-five hundred dollars not excessive. Railroad v. Brown, 18 S. E. (Va.) 280. Eight thousand dollars not excessive. Funston v. Railroad, 16 N. W. (Ia.) 523. Fifteen thousand dollars not excessive. Mitchell v. Railroad, 24 N.Y.S. 33.

OPINION

JOHNSON, J.

Plaintiff, a fireman employed in the fire department of the city of Leavenworth, Kansas, 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 issues 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 fourteen 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 sixteen 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 forty feet wide and defendant operated a single track street railway along its center. Consequently the distance between the doorway of the fire house and the east rail of the...