Miller v. Kansas City Rys. Co.

• Decision Date: 19 July 1921
• Docket Number: 22131.
• Citation: Miller v. Kansas City Rys. Co., 233 S.W. 1066 (Mo. 1921)
• Parties: MILLER v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

233 S.W. 1066

MILLER v.KANSAS CITY RYS. CO.

22131.

Supreme Court of Missouri, Division No. 2.

July 19, 1921.

Motion for Rehearing Overruled October 1, 1921.

Motion to Transfer to Court in Banc Overruled and Opinion Modified October 24, 1921.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Euphamie H. Miller against' the Kansas City Railways Company.Judgment for plaintiff, and defendant appeals.Reversed and remanded.

B. E. Ball, of Kansas City, and L. T. Dryden, of Independence, for appellant.

M. D. Aber, of Warrensburg, and C. W. Prince, E. C. Hamilton, E. A. Harris, and Jas. N. Berry, all of Kansas City, for respondent.

WHITE, C.

The plaintiff's husband, Cletus E. Miller, was killed by one of the cars be longing to the defendant.On account of such death the plaintiff recovered judgment in the sum of $10,000, November 6, 1919, in the circuit court of Jackson county, and the defendant appealed to this court.

Cletus E. Miller was a truck driver, employed by one Paul Patton, who conducted a general trucking business.Late in the afternoon of November 27, 1918, Miller was driving a truck which became disabled, and his truck was being towed to the Patton garage by another truck driven by one Clem Hollingsworth.While the two trucks were being taken along Troost avenue at Twenty-Seventh street The chain connecting them broke, and Miller got down between the trucks to fasten it.The two trucks stood astride the right-hand rail of the street railway track, and while Miller was "hunched down" between them a car of the defendant, approaching from the rear, struck his truck and drove it forward against the other truck, crushing Miller to death between them.Hollingsworth testified that it was light enough to see a block away; that the two trucks were about 8 feet apart, and the collision was of such force as to drive the rear truck about 10 feet from where it stood.

The defendant pleaded contributory negligence, and offered evidence to show that at the time of the collision it was rainy and quite dark.The observer of the weather bureau testified that there was one-hundredth of an inch of rainfall during that day, prior to 5 o'clock, and one one-hundredth of an inch between 5 and 5 o'clock.There was no light on either truck.The defendant pleaded and offered in evidence an ordinance of Kansas City, providing that no vehicle shall be left in the street at night without light or lights so as to be visible from any direction for a distance of 200 feet."At night" was defined in the ordinance to be "during the period of one-half hour after sunset and one-half hour before sunrise, and at all other times and places when and where there is insufficient light to clearly reveal all persons and objects 500 feet distant."All motor vehicles were required to display one red light from the rear and two white lights from the front.The weather observer testified the sun would set November 27, at 4:41 p. m., standard time, but that the solar time for the setting of the sun at Kansas City was 18 minutes later, which would make sunset at 4:59.Plaintiff introduced evidence to show that the watch which Miller carried at the time, and which was taken off his person after he was killed, had been stopped by some blow at 5:27½.The motorman testified for defendant that at the time of the collision he looked at his watch, and was 5:27.The plaintiff introduced evidence to show that it was light enough to see 500 feet.Other facts important for consideration will be noticed in considering the points presented for reversal.

I.Appellant demurred to the evidence, and assigned error to the action of the trial court in overruling such demurrer.The demurrer was presented on the ground that the negligence of Miller himself in failing to keep the lights glowing on his truck contributed to his injury, and should bar his recovery.As appears from the statement of facts above there was substantial evidence tending to show that the collision occurred 28 minutes after sundown, and that it was light enough to reveal persons and objects 500 feet distant, from which the jury might properly find there was no violation of the ordinance in failure to display lights.

Other facts are mentioned which appellant claims show that Miller was negligent in going between the cars without guarding against the approach of vehicles, and in allowing the trucks to stop so that they were on the track of the street railway company when there was plenty of room on the side for them.Inasmuch, however, as the case was submitted to the jury on the humanitarian doctrine alone, it may be conceded that Miller was negligent in those particulars.

II.It is objected that the case should not have been submitted under the humanitarian rule because there was no competent evidence which would authorize it.

Hollingsworth testified that a headlight was on the rear truck, which could have been used if they had needed it, but they did not have it turned on because it was not needed.He did not see the car until it was within 10 feet of the truck, because he had has mind on tying the chain, although he could have seen the street car a block away; he called to Miller warning him of the approaching car, but Miller didn't appear to hear; it was not raining nor foggy; it was a little misty.The motorman said he was running at the rate of five or six miles an hour.

There was evidence for the plaintiff that the motorman was not looking ahead, but looking to one side as he approached the place where the trucks were; that the cars of the 900 series, equipped with sand and reverse, running at the rate mentioned, could be stopped within 2 or 3 feet, almost immediately.

It is claimed there is no evidence to show that the motorman saw or could have seen Miller before striking the truck; he was "hunched down" between the trucks, tying the chain.The motorman himself testified that he did not see the truck until within 10 feet of it, and he applied his sand and his reverse as soon as he saw it.He did not say he had no reason to think any one was between or about the trucks.He stopped as soon as he could after seeing the trucks, 10 feet away.His headlight was burning, but he said he was blinded by a street light at Twenty-Sixth street.If it was light enough to see a block, as Hollingsworth swore, or dark, as the motorman swore, it seems incredible that, if he had been looking, he could not have seen the truck much sooner than he did see it.He could hardly have supposed two motor trucks would be left across his track unattended by some one in a dangerous position.We think it was for the jury to say...