Percell v. Metropolitan St. Ry. Co.
| Citation | 103 S.W. 115,126 Mo. App. 43 |
| Parties | PERCELL v. METROPOLITAN ST. RY. CO. |
| Decision Date | 01 April 1907 |
| Court | Court of Appeal of Missouri (US) |
Before descending a steep hill, down which its line ran, defendant was accustomed to stop its cars, and it was the conductor's duty not to give the signal to start until he was at the hand brakes on the trailer of the train prepared to use them if necessary. At the time of the accident the train was so crowded that, when brought to a stop at the top of the hill, the conductor had difficulty in reaching his position, and the gripman started the car without the signal from the conductor, the car acquiring some speed before the latter reached the hand brake. The gripman had detached his hold on the cable, and set the brakes under his control in such a manner that they locked the wheels, causing them to slide on the rails. Had the brakes been set with less force, such sliding would have been avoided, and the train could have been brought to a standstill. The gripman was a raw hand, inexperienced, and incompetent, and the train sliding down the hill struck the vehicle plaintiff was driving. Held, that defendant was negligent.
3. SAME — RIGHTS OF PEDESTRIANS.
Travelers on public thoroughfares traversed by street cars have the right to presume that the street car company will not negligently overload its cars, thereby imperiling the safety of travelers by losing control of the cars.
4. SAME — PLEADING — SCOPE.
In an action against a street railway for injuries received by plaintiff by being struck by one of defendant's cars, a petition alleging that by reason of defendant's negligence in the operation of its road, its equipment, its trains, and cars running thereon, its negligent failure to stop one of its cars before crossing a street, etc., plaintiff was injured, included defendant's negligent act in making a premature start at the top of a hill on the descent whereof plaintiff was injured, permitting the train to attain a too rapid rate of speed in the descent, the negligent handling of the brakes, the failure to apply sand to the rails to prevent the wheels from sliding on them, and the negligent overloading of defendant's cars, whereby they could not be controlled.
5. SAME — DUTY OF TRAVELER ON PUBLIC STREET.
It is the duty of a traveler on a public street, when approaching a railway crossing, to make a reasonable use of his senses of sight and hearing before entering the sphere of danger to ascertain whether the safety of his passage on the crossing is threatened by approaching cars, and to act with reasonable care to avoid an encounter with present danger.
6. SAME.
A traveler on a public street has a right to presume that the operators of approaching street cars are exercising and will continue to exercise reasonable care in approaching a crossing.
7. SAME — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.
In an action against a street railway for injuries sustained by plaintiff being struck by defendant's car at a street crossing, the question of plaintiff's contributory negligence held one for the jury.
8. SAME — INSTRUCTIONS.
Where, in an action against a street railway for injuries received by a plaintiff by being struck by defendant's car at a street crossing, plaintiff alleged and proved that he attempted to cross defendant's track in reliance on a custom of the latter to stop its cars before crossing the street at the intersection, an instruction permitting a recovery for plaintiff if he was injured by reason of defendant's failure to stop the cars according to the custom, without requiring a further finding that plaintiff had knowledge of the custom, or that he relied on it, was prejudicial error.
9. TRIAL — INSTRUCTIONS.
An instruction which on an assumed hypothesis directs a verdict for the plaintiff, to be free from criticism, should contain all of the ingredients essential to the right of recovery under the pleadings and evidence.
Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.
Action to William Percell against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.
John H. Lucas, Chas. A. Loomis, and Ben F. White, for appellant. Boyle, Guthrie & Smith, for respondent.
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff had judgment in the sum of $587, and the case is here on defendant's appeal.
The injury occurred about 11 o'clock in the evening of January 21, 1904, at the intersection of Ninth and Walnut streets, in Kansas City, a locality in the heart of the business district. Defendant at the time was operating a double track line of street railway on each street; that on Ninth street being a cable road. The course of Ninth street is in an east and west direction, and from a point one block east of Walnut street to a point one block west thereof runs down a steep hill. Walnut street runs north and south, is practically level, and, to the extent of its width, forms a break in the declivity of Ninth street at their intersection. Plaintiff, a hackman, had delivered a passenger to a hotel on Walnut street, and driving south on that thoroughfare, along the west side of its roadway for vehicles, approached the Ninth street crossing. The north track on the Ninth street line was used by west-bound cars, and just before his horses reached that track plaintiff looked eastward to see if a train was approaching thereon, and discovered that such was the fact. A train, consisting of a grip car and trailer, was coming down the hill, and was then some 30 or 40 feet east of the property line on the east side of Walnut street. It is charged in the petition, and conceded in the evidence, that defendant had established the custom of stopping its westbound trains before crossing the tracks on Walnut street. Plaintiff, knowing of this custom, and having ample time in which to cross in safety should defendant continue to observe it, checked the speed of his team from that of a slow trot to a walk, and drove on. When he got to a point where the front end of his carriage was over the north rail of the north track, he became aware that the operators of the train, in violation of the custom, were proceeding to the crossing without stopping, and that a collision was imminent. He attempted by stopping, backing, and turning to get out of the way, but before this purpose could be accomplished the grip car struck the front end of the carriage, and the injury followed. The fact that the train did not stop at its accustomed place is conceded by defendant, and an attempt is made to excuse the failure on the ground that under the peculiar conditions then prevailing it was impossible for the gripman to make the stop, though he employed every possible means at his command to that end. It was shown that both cars composing the train were greatly overcrowded with passengers, and that the rails were incrusted with ice from sleet and rain which had been falling, so that the brakes failed to bring it to a standstill as they would have done under ordinary conditions. After pleading the custom of defendant to stop its trains on the east side of Walnut street, and plaintiff's reliance on that custom, the specific negligence of defendant alleged in the petition is as follows: "Defendant, although it saw or by the exercise of due care ought to have seen plaintiff in a position of peril in time to have stopped its train, without any warning to the plaintiff, by reason of its negligence in the employment and retention of careless and incompetent employés engaged in the construction, maintenance, and operation of its line of said railway, and its equipment, its tracks, and its trains and cars running thereon, and by reason of the negligence of defendant in the construction, maintenance, and operation of its said line of street railway, its equipment, its tracks, and its trains and cars running thereon, negligently failed to stop one of its said west-bound trains at the east line of Walnut street, and negligently failed to stop said train at all until it had negligently been permitted or caused to run across Walnut street to the west side thereof, and to come into collision with the plaintiff's hack and horses," etc. Plaintiff failed to introduce any evidence tending to show any defect in the track, cars, or appliances used, or to show that the usual signals were not given as the train approached the crossing, but did adduce substantial evidence tending to show that the gripman was a raw hand, inexperienced, and incompetent, and that he...
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