Miller v. Dunham

• Decision Date: 06 March 1916
• Docket Number: No. 11883.,11883.
• Citation: 186 S.W. 29
• Parties: MILLER v. DUNHAM et al.
• Court: Missouri Court of Appeals

186 S.W. 29

MILLER v. DUNHAM et al.

No. 11883.

Kansas City Court of Appeals. Missouri.

March 6, 1916.

Rehearing Denied May 1, 1916.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

"Not to be officially published."

Action by Marie Miller against Robert J. Dunham and another, as receivers for the Metropolitan Street Railway Company. From a judgment for plaintiff, defendants appeal. Affirmed.

John H. Lucas, of Kansas City, and L. T. Dryden, of Independence, for appellants. Reed & Harvey, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff's husband, a motorman on a street car, was killed in a collision of his car with a repair truck standing on the track. This suit was brought for damages, and plaintiff recovered judgment.

The main contention of defendant's appeal is that upon the evidence plaintiff has no case. Double street car tracks are maintained on Prospect avenue in Kansas City. Said highway runs north and south. The south-bound cars run on the west track and the northbound on the east track. The fatal casualty occurred on the west track at a point on said avenue nor far from where the south line of Forty-Seventh street crosses it, though Forty-Seventh street had not, in fact, been opened that far. Prospect avenue is 60 feet wide, and on each side of the tracks is a paved roadway 20 feet wide. A concrete bridge of the same width as the avenue began near the south line of Forty-Seventh street and extended south in the avenue a short distance. It was downgrade from Forty-Third street south almost to this bridge and then after the bridge was passed it was upgrade to Forty-Eighth street, the end of that line. These cross streets were about 600 feet apart. A while before plaintiff's husband's car came from the north, an electric repair truck drove north on the west driveway of Prospect avenue until it came to the north end of the bridge, and there it turned, faced to the south and stopped on the west track in order to repair the overhead trolley wire. The truck was operated by electricity, but was an ordinary automobile truck, and ran over the streets and not on the rails like a street car. It had a low flat body, upon which was a tower made of open framework, which could be reared into the air so as to form a skeleton tower reaching to the overhead wire. It had two headlights in front, but, as the truck stood after being stopped, these were pointing to the south, and hence were not visible to one coming from the north. It was after 10 o'clock at night, and it was very dark. In addition to this, the truck was in a dark place, being in the low place between the two slopes. Between 10:30 and 11 o'clock plaintiff's husband came south-bound in his street car on the west track, and, not seeing the truck, crashed into it and was killed at his post.

The question whether the evidence made a case for plaintiff involves two features: (1) Was there negligence on defendant's part in failing to give sufficient notice and warning of the presence of the truck on the track? (2) Was the motorman guilty of contributory negligence in failing to see the truck and in failing to have his car under proper control so as to be able to stop before striking it, if he could see it? And for us the problem is much narrower than that. It it not what we think the evidence would disclose were we the triers of fact, but whether or not the evidence is such that we can say, as a matter of law, either that no negligence was shown in the matter of giving notice of the truck, or that the deceased was negligent in not seeing and avoiding it. And of course these two matters are very closely interrelated. The jury by their verdict have said that the defendant was negligent, and that the deceased motorman was not. And before an appellate court can disagree with that view there must be no reasonable doubt as to what are the facts, and they must be such that reasonable men cannot draw different inferences therefrom.

As to whether there was negligence in failing to give sufficient warning of the truck, it would seem to be unquestionably a matter for the jury to pass upon. The motorman had no previous knowledge that the truck would be there. It was a very dark night, and the spot was rendered darker by reason of its being at the low place between the slopes. Defendant's contention is that, owing to the presence of a forge and two white lanterns on the truck, one on the tool chest, and the other up on the tower near the wire, 19 feet from the ground, and a red light hanging to the rear east axle, sufficient notice of the truck's presence was given. But a witness for plaintiff was coming north from Forty-Eighth street on the west driveway of Prospect avenue about five minutes before the collision. He did not discover the truck by any lights thereon, but by the aid of the arc lamp at Forty-Sixth street which, forming a background of light against which the workmen on the tower appeared, enabled the witness to see them. They seemed to him to be working in the dark, and it was the reflection of the arc light at Forty-Sixth street behind them which brought them into view. Evidently if the men had a light up there (as doubtless they had), it was one so arranged as to concentrate its light on their work, and not such as to give warning of the truck's presence to one at a distance up the track. This witness was 75 or 80 feet from the truck when the car struck it and he says he saw no lights thereon. Another of plaintiff's witnesses, a man who lived east of Prospect avenue and about 75 feet north of the bridge, says he was sitting on his porch and saw the truck as it drove up and turned around, and that after it had stopped and was facing south, there was but one light on it, and that the red light hanging to the rear axle. He also says that the forge burned intermittently. The fact that the forge gave no light is shown by defendant's evidence that they had a lantern on the tool box to enable them to see their work. The record is not clear as to just where this lantern was, nor whether it was so located as that necessarily it could be seen by one coming up behind the truck. Certain it is that the lantern was a white light, and was not intended as a warning but only to illuminate the work being done.

As to the red light on the rear axle, the circumstances were such as to deprive it of effectiveness as a warning. The east track at this point was being repaired, and a row of dirt was piled up between the east and west tracks, 2 feet high, from a point 50 or 60 feet north of the bridge south halfway up to Forty-Eighth street. On top of this row...