Miller v. Harvey
| Decision Date | 10 June 1918 |
| Parties | CATHERINE MILLER, Respondent, v. FORD F. HARVEY and R. J. DUNHAM, Receivers of the METROPOLITAN STREET RAILWAY COMPANY, a Corporation, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Clarence A. Burney, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Reinhardt Schibsby & Muenich for respondent.
Clyde Taylor and Chas. A. Stratton for appellants.
This is an action for damages sustained by plaintiff on account of the killing of her husband on July 2, 1915. The case was pleaded and recovery was had upon the "humanitarian" or "last chance" doctrine.
Defendants' first point is that their demurrer to the evidence should have been sustained. Taken in its most favorable light to plaintiff, the evidence shows that on said date the deceased a man sixty-nine years of age, while engaged in his business as a market gardener, stopped his wagon in front of a grocery store on the south side of Fifteenth Street, midway between Locust and Cherry Streets, in Kansas City, Missouri. The wagon was headed east. Deceased after having transacted his business in said store returned to his wagon, got upon the seat and immediately started up, pulling his horse toward the north and thence on to defendants' eastbound street car track. He did not look around but continued looking in the direction in which his wagon was going, to-wit, toward the north, and apparently oblivious of the fact that a car was approaching from the west. The distance between the curb and the first rail of the eastbound street car track was seventeen and one-half feet. The distance between the outer rails of the two tracks was fifteen feet. The evidence was that an ordinary horse is about eight feet in length. At the time deceased started his horse and wagon there was an eastbound street car proceeding upon the south track of the double tracks there present, at the rate of ten miles per hour, one hundred and thirty-two feet from the point where deceased drove upon said track. Plaintiff proceeded from the curb to the point of collision, north of where he started up his horse, at a speed described by one witness as a slow walk. Of course this might mean that deceased was proceeding at the rate of speed of even less than two or three miles per hour. However, he must have been proceeding at a rate of a little more than two miles per hour for the reasons hereinafter given.
When the front wheels of the wagon reached the middle of the eastbound track, the car struck the left front wheel throwing plaintiff from the wagon ten feet ahead of it on to the track. At that time the horse had cleared the eastbound track to the north and was uninjured. The car at no time slackened its speed before striking deceased. After striking deceased the car ran one hundred feet before it was finally stopped. The evidence shows that deceased was yet alive on the track eighty feet east of the collision, for at that time he was between the front and rear trucks of the car and uttered a scream. Immediately after the car stopped the motorman backed it, one wheel again passing over the body of deceased. When the car finally stopped deceased was found dead between the north wheels of the front truck. A witness on the part of plaintiff testified that at the moment of the collision the motorman was leaving the front of the car. Another witness testified that when he looked up upon hearing the crash he saw the motorman and conductor standing back in the body of the car. At this time the conductor was evidently urging the motorman to return to his place of duty which the motorman did and was thereafter seen apparently moving an appliance, after which the car stopped within ten feet. When the car stopped the wagon was in front of it but neither it nor the horse was injured. The motorman testified that the horse and wagon while in front of the store was headed toward the east and that he viewed the deceased from that time until the time of the collision; that he did not think that deceased was in a position of peril until he, the motorman, was within thirty-five or forty feet of him, at which time deceased was going upon the track, "when the horse's head got on the rail." However, he did nothing to stop the car until he got within twenty feet of him. The evidence shows that the car was going down a grade of 4.01 feet. The motorman stated that the power was off and that he was coasting down the hill and that when he got within twenty feet of the deceased he set the emergency brake and locked the wheels and reversed the car but did not drop any sand. That this had the effect of locking the wheels; that the car was almost stopped when the wheels of the wagon "stuck up through the window glass." At that time he stepped back out of danger. He testified that the car stopped before he returned to the vestibule. He testified that under the circumstances the car could have been stopped within forty feet. There was other testimony that it could have been stopped in thirty feet. No gong was sounded nor warning given.
Under these circumstances defendants say their demurrer to the evidence should have been sustained, because, defendants say that the time that elapsed between the time deceased got into a position of danger and the time of the collision was so short that the motorman had no chance in which to avoid the accident. With this we are unable to agree. Deceased was in peril before the horse's feet reached the first rail of the south tracks. [Ellis v. Railway, 234 Mo. 657, 686.] Under the facts the jury could have found that the motorman saw deceased approaching a position of peril and oblivious thereof at the time deceased turned his horse toward the north to cross the track. The horse traveled seventeen and a half feet between the curb and the first rail and had gotten across the eastbound rails before the collision, therefore he must have traveled seventeen and a half feet plus the distance between the eastbound track and his own length before the collision. If the eastbound tracks were five feet in width and the horse was eight feet in length, then the horse traveled thirty and a half feet between the time the jury might have found that the motorman saw deceased in a position of peril and oblivious thereof and the time the car struck the wagon. During this time the evidence shows that the car ran one hundred and thirty-two feet at the rate of ten miles per hour. If the car covered this space going at that rate of speed, the distance was covered in nine seconds. If the horse went thirty and a half feet while the car was going one hundred and thirty-two feet at ten miles per hour, or in nine seconds, then the horse was traveling at the rate of 2.31 miles per hour, and as the evidence was that the horse was going at a rate described as a slow walk, we may assume from all the evidence that it was proceeding at the rate of 2.31 miles per hour. The motorman could have stopped the car within thirty feet; he had one hundred and forty-two feet in which to stop it before striking deceased, as he ran ten feet before running over deceased after the collision with the wagon. Under these circumstances the motorman had more than nine seconds in which to take in the situation, coordinate his muscles and stop the car. The car was equipped with all the latest appliances for stopping cars. It...
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