Peterie v. Metropolitan St. Ry. Co.

Decision Date19 January 1914
Citation177 Mo. App. 359,164 S.W. 254
PartiesPETERIE v. METROPOLITAN ST. RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by William Peterie against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and Chas. N. Sadler, both of Kansas City, for appellant. Botsford, Deatherage & Creason, of Kansas City, for respondent.

TRIMBLE, J.

Defendant operated a double track electric railway between Kansas City and Independence. At a public road crossing thereon, one of defendant's cars struck an empty lumber wagon driven by plaintiff, throwing it to one side, and severely injuring plaintiff. He sued for damages on the ground that the injuries were caused by the negligence of defendant under the humanitarian rule. The jury found in favor of plaintiff, and defendant appealed.

The collision occurred on the afternoon of February 26, 1910. The county road, at the point in question, is macadamized, and runs east and west. The two tracks of the railway run north and south, and cross the county road at right angles. The car that did the damage was running south on the west track, and struck the rear end of plaintiff's wagon as it was traveling westward over the crossing. As the wagon was struck on the rear end and thrown to the west side of the track, the car must have struck it just at the moment it was about to clear the west or last track to be crossed. The speed of the car in approaching the crossing was 25 miles per hour, and the evidence tends to show that this speed was not reduced until the instant of the collision. As plaintiff approached the crossing from the east, there was nothing to prevent him from seeing the car nor the motorman from seeing his wagon, and each testified that he first became aware of the approach of the other vehicle when the car, which was running up grade, was 200 feet from the crossing. Plaintiff says that his team then was 10 feet from the east track, and, as the two tracks were 9 feet apart, the heads of his horses were about 24 feet, and the rear axle of his wagon (over which he was sitting) was about 49 feet, from the west track, which, as stated, was the track on which the car was approaching. The team was going in an ordinary walk, and, concluding he had ample time to cross ahead of the car, plaintiff looked in the opposite direction to ascertain whether or not a car was coming on the east track. There was a substation or power house at the southeast corner of the intersection, and plaintiff claims that he had to look southward until he passed from behind the power house before he could be sure that his crossing would not be endangered by a north-bound car, and that he did so look. Then he looked northward and saw that the approaching car was only 40 feet away, and was coming on with unabated speed. At that time, however, the front wheels of his wagon had just passed over the west rail of the first track, and his team was at the east rail of the west track and, of course, in the way of the oncoming car. His wagon had been lengthened to carry lumber, and the distance from the heads of the horses to his position over the rear axle was about 25 feet. Fearing a collision, and thinking he could not avoid it by backing the team or trying to turn them to one side, he urged them forward, and had almost succeeded in clearing the track when the car struck the rear end of the wagon. Other witnesses introduced by plaintiff corroborate his statements that the motorman did not attempt to slacken speed before the collision, nor give any warning signals.

The motorman says the car was going 25 miles an hour, and that the car was 200 feet from the crossing when he first observed plaintiff approaching it. (This is the distance the car was from the crossing when plaintiff says he first saw it.) But in other respects the motorman's version differs from that of the plaintiff. The motorman says that, when he saw plaintiff approaching, he sounded the gong, and that plaintiff stopped his team in a place of safety and waited until the car was 40 feet from the crossing when he suddenly started forward and attempted to cross in front of the car and that as soon as he did that, the witness exerted himself to the utmost to stop the car, but was unable to avoid the collision which, he says, occurred between the car and the front end of the wagon. The testimony of the motorman is supported by that of other witnesses introduced by defendant.

We must, however, accept plaintiff's version of what he did rather than the motorman's, as the jury found for plaintiff, thus requiring us to give full weight and credit to all of plaintiff's evidence, and to every inference which can be legally drawn therefrom.

The first point urged by defendant is that the petition states no cause of action, because it is a felo de se; that is, that the petition contains two different allegations of negligence, which are necessarily so repugnant to each other as to be mutually destructive. To be so, they must be such that, if one is true, the other must necessarily be untrue. The point...

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