Muir v. Wilson

• Decision Date: 05 July 1924
• Docket Number: 25,375
• Parties: CLINE F. MUIR, Appellee, v. FRED W. FLEMING and FRANCIS M. WILSON, Receivers of THE KANSAS CITY RAILWAYS COMPANY, Appellants
• Court: Kansas Supreme Court

227 P. 536

116 Kan. 551

CLINE F. MUIR, Appellee, v. FRED W. FLEMING and FRANCIS M. WILSON, Receivers of THE KANSAS CITY RAILWAYS COMPANY, Appellants

No. 25,375

Supreme Court of Kansas

July 5, 1924

Decided July, 1924

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Collision Between Truck and Street Car--Negligence of Street Car Motorman--"Last Clear Chance." The doctrine of the "last clear chance" is applicable to the situation of the plaintiff where the truck in which he was riding was struck by a street car, the motorman of the same seeing, or should have seen, that the plaintiff was in a dangerous position, from which he could not extricate himself, and the motorman, in the exercise of reasonable care having time to have avoided the injury, failed to do so.

2. SAME--No Error in Record. Other objections to the rulings of the court examined and held to be without error.

E. S. McAnany, M. L. Alden, T. M. VanCleave, O. L. Miller, and C. C. Glandon, all of Kansas City, for the appellants.

L. O. Carter, C. C. Glandon, of Kansas City, and W. W. McCanles, of Kansas City, Mo., for the appellee.

OPINION

JOHNSTON, C. J.:

The plaintiff while riding on a motor truck was injured in a collision with a street car operated by the defendants. In an action to recover for the injury sustained the jury found for the plaintiff, awarding him $ 2,500 as damages. Defendants appeal.

The collision occurred near the intersection of Thirty-first and Parallel streets in Kansas City. Double street-car tracks are laid on the center of Parallel street, which runs east and west. Street cars going west travel on the north track and halt at the approach to intersecting streets for passengers to alight or board the cars. On the occasion in question a car of the defendants was going west on the north track. The plaintiff and one Kellner were delivering groceries, using a motor truck for that purpose, and Kellner was driving it. The plaintiff and his companion had been in the employment of the grocery house for some time and were acquainted with the situation, and sometimes the plaintiff drove the machine and sometimes Kellner did, just as might be convenient. When the accident occurred Kellner was driving, and at that time the truck was being driven behind the west-bound street car on the north track, and they had followed the street car for a block or two before reaching Thirty-first street. The street car stopped before entering the intersection at Thirty-first street to allow a passenger to alight. The truck following halted about ten feet behind the street car, and then it was turned south behind the standing street car, and they were proceeding across the south track when it was struck by an approaching car on that track, which was traveling east at a speed of fifteen miles per hour. When the truck passed the hind end of the west-bound car and entered upon the south track, the plaintiff and the driver could only see about eight or ten feet towards the coming car, and at that time the car was forty to forty-five feet from the truck. The motorman on the colliding car could have seen the truck and the plaintiff's peril forty to forty-five feet before striking him, and did not slacken the speed of his car. When the street car collided with the truck the hind wheel of the truck was knocked off and the truck pushed along the track in that condition about fifteen feet, and then was thrown in an angling direction across Parallel street and against the steel trolley pole about forty feet farther on the side of the street. The plaintiff was not thrown from the truck or injured until the truck struck the steel pole, and by the impact with the pole he was thrown through the wind shield and injured. There was testimony that an existing rule of the company required that a street car should not be run past one standing for passengers to board or alight from it, and a witness who had been a motorman stated that, assuming that his car on an adjoining track had discharged passengers and was just in the act of starting, but had not gone far enough so that persons or vehicles behind the car would come into view, the car on the other track should be under control so that it could be stopped almost instantly. The negligence alleged was: running the car which collided with the truck at a high and dangerous speed while passing another car which had stopped to discharge passengers; failure to give any warning of its approach; failure to keep a lookout for vehicles crossing the street; failure to bring the car to a full stop when passing a standing car, in violation of existing rules; and failure to keep the car under control or slacken its speed when the plaintiff's peril was discovered by the motorman. Incompetency of those in charge of the car was also assigned as negligence. In answer to special questions submitted to the jury, the following findings were returned:

"1. At the time the truck in question turned from its westward course toward the left, did the plaintiff or the driver do anything to prevent an accident on the south track? Answer No.

"2. Immediatly before the truck in question went upon the south track, how far could the plaintiff or driver have seen west upon the south track? Answer: Between 8 and 10 feet.

"3. Immediately before the truck in question went upon the south track, was there any obstruction there which prevented the plaintiff or the driver from seeing the approaching east-bound street car? Answer: Yes.

"4. If you answer question 3 in the affirmative, then state what the obstruction was. Answer: West-bound car.

"5. If...