Nufer v. Metropolitan St. Ry. Co.

• Decision Date: 07 February 1916
• Docket Number: No. 11908.,11908.
• Parties: NUFER v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Court of Appeals

182 S.W. 792

NUFER v. METROPOLITAN ST. RY. CO. et al.

No. 11908.

Kansas City Court of Appeals. Missouri.

February 7, 1916.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by William Nufer, by next friend, Otto Schmidt, against the Metropolitan Street Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Kyle & Coon, of Kansas City, for appellant. John H. Lucas and Charles N. Sadler, both of Kansas City, for respondents.

JOHNSON, J.

Plaintiff, a minor, sued by next friend to recover damages for personal injuries he received in a collision at a street crossing in Kansas City between a Brooklyn avenue street car operated by defendants and a two-horse milk wagon plaintiff was driving. The petition alleges that the car was running at a speed in excess of the rate allowed by laws and ordinances of Kansas City, that plaintiff would have crossed the track in safety if its speed had been moderate and lawful, and that the motorman could have seen plaintiff in a perilous situation and avoided the collision if he had been in the exercise of reasonable care. The averment of negligence is that:

The injury was the direct result of "negligence of defendants in operating said street car at a rapid, unlawful, and dangerous rate of speed and in failing to stop or slow up said car, although the perilous condition of plaintiff was seen, or by the exercise of reasonable care could have been seen, by the servants and agents of defendants, in time to have avoided said injuries."

The defenses are a general denial and contributory negligence.

The allegations of the petition embraced negligence in running the car at excessive speed, to which contributory negligence would be a defense, and negligence under the humanitarian rule, to which it would be no defense. In the rulings on the instructions the court refused to submit the latter negligence and sent the case to the jury on the issues of excessive speed and contributory negligence. The jury found for plaintiff on these issues, and assessed his damages at $5,000. Afterwards a motion for a new trial filed by defendants was sustained, and a new trial was granted. Plaintiff appealed.

The court overruled the peremptory instruction asked by defendants, and, since the questions it raises are pressed upon us and lie at the threshold of the case on appeal, we shall give them our first attention.

The injury occurred near midday March 10, 1913, at the intersection of Tenth and Holmes streets. Plaintiff, then 18 years old, was driving south on Holmes street at a trot, and had almost cleared the north street car track on Tenth street when a west-bound car running thereon struck the rear end of his wagon, which was a covered milk wagon, and caused the injury. Holmes street is 28 feet 5 inches wide between curb lines. There is an apartment house at the northeast corner of Holmes and Tenth streets which faces west on Holmes, 20 feet back from the north line of Tenth street. When plaintiff, who states he was driving on the west side of Holmes street, emerged from behind the obstruction of the apartment house, he first looked eastward along Tenth street and observed the car coming on the north track. He states that it was at the next street intersection, 300 feet away, and, so far as he could observe, was running at usual speed. At that moment, the heads of the horses were about 6 feet from the track, and the horses were traveling about 6 miles per hour "at a slow steady trot." Plaintiff permitted them to continue at this gait over the crossing, and immediately after looking eastward and seeing the car at the next street he looked in the opposite direction, and, seeing no car approaching on the south track, proceeded without looking again towards the on-coming car. In delivering milk plaintiff had driven daily over this route for eight months, had often seen cars approaching on that track, and on cross-examination admitted that he did not notice any difference "in the way this car was coming and the ones he had seen." An ordinance admitted in evidence limited the speed of cars in that section of the city to 15 miles an hour. A witness introduced by plaintiff testified that this car was running from 25 to 30 miles per hour — the track was downgrade — and that such speed was a usual, or, at least, a frequent occurrence on that stretch of track. The evidence of plaintiff shows that no effort was put forth by the motorman to stop or check speed before the collision.

The evidence of defendant tends to show that the car was running at 10 or 12 miles an hour; that, when the motorman, who was looking in that direction, first saw the wagon, it was about as far from the crossing as the car; that the team was traveling at a very fast trot, and kept that gait over the crossing; that plaintiff did not look towards the car; and that the motorman, on the first appearance of danger, applied the brakes and reduced speed, but could not bring the car to a stop until after the collision.

It has long been the rule in this state, applied in a multitude of cases, that to run a street car over a public street of a city in excess of the...