Pennington v. Kansas City Rys. Co.

• Decision Date: 05 May 1919
• Docket Number: No. 13252.,13252.
• Citation: 213 S.W. 137,201 Mo. App. 483
• Parties: PENNINGTON v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

213 S.W. 137

201 Mo. App. 483

PENNINGTON v. KANSAS CITY RYS. CO.

No. 13252.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Elizabeth Pennington against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, Mo., R. J. Higgins, of Kansas City, Kan., and Ben T. Hardin, of Kansas City, Mo., for appellant. T. J. Madden and Harry R. Freeman, both of Kansas City, Mo., for respondent.

ELLISON, P. J.

Plaintiff is the widowed mother of Clarence Pennington, a boy 15 years old when he was permanently injured by one of defendant's street cars running over him. Charging that the injury was occasioned through the negligence of defendant's servants in operating the car, she brought this action for loss of services of the boy until he shall arrive at the age of 21 years and for the expense of his care and attention during that time. She obtained a verdict for $10,000. The trial court required a remittitur of $2,500, and judgment was then rendered for $7,500.

The scene of the occurrence was on the south side of Twelfth street, 120 feet east of the intersection of that street and Brooklyn avenue, about in front of a "picture show" building in Kansas City. The injury happened after dark and was occasioned by an east-bound Twelfth street car. It appears that there was a political meeting being held in this building, and that plaintiff, with his 13 year old brother and an older boy, all of whom lived near a mile away, concluded to attend. They walked the entire way, and, when they arrived across the street from the meeting place, started over, one behind the other, the older boy in the lead and Clarence in the rear. They were perhaps 3 feet apart, and, according to several witnesses, were apparently absorbed in looking at the pictures in the lighted window of the "picture show" building. The streets and buildings were well lighted, including a drug store at the corner, so that a person crossing the street and going over the tracks of the railway could have been plainly seen by the motorman on the car in question if he were looking. Twelfth street, in this neighborhood, was shown to be a business thoroughfare with people constantly passing, and at the time the boy was hurt persons were gathered at the corners waiting for cars on that street or Brooklyn avenue.

There was also evidence in plaintiff's behalf tending to show that the Twelfth street car in question had stopped on the west side of Brooklyn and had started rapidly towards the boys as they were crossing the street. They crossed the north track and entered on the south track (the one on which the car was coming), neither of them looking for a car, and very probably not thinking of one. The oldest boy and the younger brother of the Penningtons cleared the track, but Clarence was caught and injured in a permanent and most distressing way, both physically and mentally. He was carried to the drug store, and finally to a hospital.

There was evidence further tending to show that the motorman gave no warning and came rapidly against the boy from the fact he (motorman) was not looking ahead, but had at the moment left his place of control by stepping to the door at the side of the vestibule to make two boys get off the front car step on which they had jumped as the car started up.

Several persons witnessed the whole affair, and the verdict vouches for the correctness of their view of it. The angle at which the boys crossed the street, together with the way they were looking, would have a tendency to prevent them observing the approaching car. At any rate, we think the evidence abundant which tends to show they were wholly taken up with the thought of the meeting and the sight of the pictures.

The foregoing is supported by a number of witnesses of different callings in life. Their statement of the tragedy and the reasonableness of their testimony, makes us readily accept the verdict of the jury and approve the trial court's action in overruling the demurrer to the evidence. On this latter proposition defendant cites many authorities to the effect that in a humanitarian case the defendant is only liable for failure to exercise care after discovering danger to the injured party. But in operating a car in a populous city what he might have seen by looking is the same as if he had actually seen.

Among the first complaints made by defendant is that embodied in objections to instruction No. 1 given for plaintiff. The objection is that the negligence charged in the petition is not hypothesized in that instruction. The negligence charged in the petition was that—

"Said injuries were due to, and occasioned by, the negligence of defendant's servants in charge of said east-bound car, in that Clarence Penington in approaching and crossing the eastbound track was in a position of danger and unaware of the approach of said car, and no reasonable lookout was maintained, and no steps were taken by said servants to warn plaintiff's said son of the approach of said car or to diminish its speed or to stop the same, and said car was caused and permitted to strike and injure the plaintiff's said son after said servants in the exercise of ordinary care could have seen said son in a position of danger or going in a position of danger, and that he was unaware of the approach of said car, when by the exercise of reasonable care in the use of the bell or the appliances to reduce the speed or to stop the same said servants could have avoided said injury to plaintiff's son."

The negligence hypothesized in the instruction was:

That "the motorman in charge of said car, in the exercise of ordinary care, could have seen and realized that said Clarence Pennington was in danger of being struck by said car, and that said Clarence Pennington was unaware of the approach of said car, and that thereafter said motorman, in the exercise of ordinary care in the use of the bell to warn him of his danger, or of the appliances to reduce the speed of the car, or to stop the same, could have avoided injuring said Clarence Pennington, and that said motorman negligently failed to so use said means to avoid striking and injuring him, and as a direct result" Clarence was struck, etc.

It will be noticed that in the negligence charged it is alleged that the motorman did not keep "a reasonable lookout," while in the negligence submitted those words are not used. To say that the motorman did not keep a reasonable lookout is, in effect, only saying that he did not look. The instruction submitted whether the motorman by ordinary care could have seen and realized that the boy was in danger, etc. There is no substantial difference. The instruction is further criticized in that it is said to assume issuable facts. We think the criticism not well made:

We see no ground for defendant's objection to plaintiff's instruction No. 2 on the measure of damages. It is in every way proper.

We will here notice defendant's complaint of the court in refusing its instruction No. 11 since we may at the same time dispose of other suggestions made in the argument. The instruction stated that it was not the duty of the motorman to keep a "lookout" for persons who might be crossing the street at the place in controversy. The evidence showed that this was a much-used street in the center of a large city, and at this particular place a moving picture show building was in use. Kinlen v. Railroad, 216 Mo. 145, 156, 115 S. W. 523; Ellis v. Street Railway, 234 Mo. 673, 679, 138 S. W. 23;...