Peterie v. Metropolitan Street Railway Company
| Decision Date | 02 March 1914 |
| Citation | 164 S.W. 254,177 Mo.App. 359 |
| Parties | WILLIAM PETERIE, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Original Opinion of March 2, 1914, Reported at: 177 Mo.App. 359.
Motion denied.
OPINIONON MOTION FOR REHEARING.
In a motion for rehearing defendant very earnestly insists that we should hold, as matter of law, that plaintiff was guilty of such negligence, in attempting to cross the track in front of the approaching car, as to bar him of recovery without regard to the humanitarian rule. Defendant's contention is that plaintiff's knowledge that a car was coming is sufficient of itself to put him beyond the pale of the humanitarian rule. But plaintiff's knowledge of the approach of the car is not sufficient of itself to do this. Of itself, such knowledge can only render plaintiff guilty of contributory negligence, and such negligence does not prevent the operation of the humanitarian rule, if after such negligence becomes apparent to the motorman there is still time for him in the exercise of reasonable care to avoid the injury. Plaintiff's knowledge of the approach of the car could affect the humanitarian rule only in one way: That is, by such knowledge being made apparent to the motorman. If the motorman knew that plaintiff was aware of the approach of the car, then the motorman had a right to presume that the plaintiff would not go from a place of safety into a place of danger. But, if the motorman had nothing to show that plaintiff knew the car was approaching, he had no right to presume that plaintiff would not go upon the track because the plaintiff was looking the other way and was steadily approaching the track giving every indication of an intention to cross, and no indication whatever that he knew the car was coming. In that situation, plaintiff was oblivious to his danger, and that obliviousness was apparent to the motorman. If now, after that obliviousness became apparent to the motorman, there was still time for him to check or stop the car, by ordinary care, it was his duty to do so under the humanitarian rule. The fact that plaintiff was mentally aware that a car was approaching would have no effect on the humanitarian rule unless the motorman knew or had reason to believe he was so aware of it. Plaintiff could have knowledge that a car was approaching and yet be oblivious to the danger of crossing the track; and unless there was something to lead the motorman to believe plaintiff had such knowledge, there was nothing to prevent the motorman from knowing that he was oblivious to the danger.
For this reason we do not think the decision herein is contrary to Reeves v. Railway, 158 S.W. 2, nor to Pope v Railway, 242 Mo. 232, nor to Kinlen v. Railway, 216 Mo. 145. In the Pope case the plaintiff's knowledge of the approach of the train was known to the engineer. But even in that case the court says there will be liability if proper care is not exercised to stop the train after it becomes apparent that the person was going to remain in danger. In the Reeves case, the engineer had the right to assume that Mrs. Cozby would not walk in front of the train because she looked at the approaching engine,...
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