Peterson v. Chicago & Alton Railway Co.
| Decision Date | 30 June 1915 |
| Parties | ALBERT PETERSON v. CHICAGO & ALTON RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James E. Goodrich, Judge.
Affirmed.
Scarritt Scarritt, Jones & Miller for appellant.
(1) That Kansas City is inhibited by the State Constitution from abrogating or departing from any general statute passed by virtue of the general police power of the State, is settled by several decisions of the Supreme Court. State ex rel v. Telephone Co., 189 Mo. 83; State ex rel. v Yates, 190 Mo. 540; St. Louis v. Meyer, 185 Mo. 583; Ewing v. Hoblitzelle, 85 Mo. 64; St. Louis v. Williams, 235 Mo. 503. Inasmuch as plaintiff admitted that he had acted in violation of such Sec. 1180, R. S. 1899, the trial court erred in refusing to hold that plaintiff was guilty of negligence per se and, therefore, erred in overruling defendant's demurrer to the evidence. (2) Defendant's demurrer to the evidence should have been sustained because plaintiff was clearly guilty of contributory negligence outside of Sec. 1180, R. S. 1899, and this for several reasons: (a) Plaintiff was guilty of negligence in failing to observe and obey the stop signal given to him by the watchman at the crossing very shortly after the watchman had given to him the signal to go forward. (b) Plaintiff was guilty of contributory negligence in that instead of making a determined effort to stop his street car after he saw the moving coal car with which he collided, he put on full power and deliberately ran his street car in front of the approaching coal car. (c) Finally, plaintiff was negligent because under all the evidence he saw, or clearly could, by the exercise of ordinary care, have seen, the approaching coal car in ample time to have stopped the street car and avoided the collision.
Cook & Gossett for respondent.
(1) There is no constitutional question involved in this case. Wills v. Railroad, 133 Mo.App. 625. This case was certified to the Supreme Court on the same proposition as that involved in the case at bar and the Supreme Court sent the case back, holding that no constitutional question was involved. No opinion of the Supreme Court is filed with its mandate retransmitting the case, but from the briefs of counsel it appears that an alleged constitutional question was raised. Kirkwood v. Meramec Co., 160 Mo. 111; State v. McKee, 196 Mo. 106; Petring v. Current River Co., 111 Mo.App. 373; Clark v. Porter, 162 Mo. 516; Hilgert v. Barber Co., 173 Mo. 319. (2) Secs. 9752 and 9753, R. S. 1909, give Kansas City exclusive control of its streets and the regulation thereof and supersede Sec. 3303, R. S. 1909 (Sec. 1180, R. S. 1899). Wills v. Railroad, 133 Mo.App. 625; Kerney v. Asphalt Co., 86 Mo.App. 573; State v. Kessels, 120 Mo.App. 233.
This suit was instituted in the circuit court of Jackson county by the plaintiff to recover the sum of $ 1999.99, from the defendant, as damages alleged to be due him for personal injuries sustained through its negligence in the operation of one of its freight cars, while passing over one of the public streets of Kansas City.
The plaintiff recovered judgment for the sum of $ 1250, and the defendant duly appealed the cause to the Kansas City Court of Appeals.
Because of certain constitutional questions involved that court transferred the cause to this court for determination.
The pleadings are not challenged in any particular, consequently we will pass them with the observation that they were sufficiently comprehensive to cover all of the propositions presented to this court for adjudication.
The facts of the case are fairly outlined in the statement of the case made by counsel for the plaintiff, which we will largely follow in the preparation of the statement of the case.
The plaintiff in substance testified: That at the time of the injuries complained of he was about thirty-five years of age. That at the time of his injuries, which was August 17, 1904, he was a motorman, and with the conductor was in charge of and was operating one of the cars of the Metropolitan Street Railway Company of Kansas City. That he was injured in consequence of a collision which occurred between said street car and one of the defendant's freight cars, at or near the intersection of First Street with Lydia Avenue, Kansas City, Missouri.
Up to and prior to that time the plaintiff had been a motorman and operating a street car upon and along said avenue for a period of some seven years.
Lydia Avenue runs north and south, and First Street east and west. The latter street, at the point of collision, had sixteen railroad tracks laid therein, and in the former there was located a double street-railway track. That intersection was known as the "Sixteen-Track Crossing."
The street railway tracks run north and south and the railroad tracks run east and west.
That at the time of the injury the plaintiff was going north on Lydia Avenue and when his car reached the south side of said crossing he brought it to a full stop and remained standing a sufficient length of time to allow two or three passengers to alight therefrom. That thereafter the conductor closed the gate of the street car and thereupon the plaintiff called for a signal from the flagman, an employee of the defendant, stationed at said crossing, and received from him a signal that the way was clear and for him to proceed across the intersection.
On the east side of Lydia Avenue there was a board sidewalk about four feet in width, the whole avenue being about fifty feet wide. The street railway tracks were approximately laid in the center of the avenue and the rails of each track were about four feet and eight inches apart, and the tracks were separated by the same distance.
The railroad tracks were also separated by the same distance that the street car tracks were, and the rails thereof were equally far apart.
That on the west side of Lydia Avenue, from the south track of the defendant company up to the next track south of the one where the collision occurred, numerous railway cars were standing on the tracks close to the west edge of Lydia Avenue, some of which were box cars. They so obstructed the plaintiff's view that the first he saw of the defendant's car, the one with which his car collided, was the drawhead thereof emerging from behind the stationary freight cars before mentioned.
The car of defendant, with which plaintiff collided, was what was called a "kicked car," that is, one so violently shunted that its own momentum would propel it to the desired destination across the street, without the assistance of an engine or other power. This car was running about ten or twelve miles per hour, in violation of a speed ordinance of the city, and without any one being upon or in charge of it. At that time the street car was moving at about four to six miles per hour, and was only six or eight feet from the defendant's car when the plaintiff first discovered it. At that particular moment the street car did not have its power turned on, but was "floating across" the street, as stated by the witness.
Upon seeing the approach of the defendant's car, the plaintiff grabbed his brake, first intending to stop the street car, and seeing that could not be successfully done, because it could not have been stopped under twenty feet, he then turned on all power with a view, not of crossing in front of the "kicked car," but of hitting it with such force as to knock it from the track, and thereby prevent it from hitting, overturning and smashing the street car, in which there were several passengers. Owing to a miscalculation of the speed the street car would obtain under full power, a few feet of the front end of the street car passed in front of the front end of the kicked car, and the impact thereof derailed both cars, and turned the street car alongside of the freight car, and greatly injured the plaintiff, who was standing in the vestibule of the street car.
The flagman's shanty or watch house was about sixty feet north of the track upon which the collision occurred. The flagman was at his post of duty, and there was nothing to obstruct his view of the approaching street car.
The plaintiff heard no bell or whistle warning him of the approach of the defendant's car, nor saw any signal of any kind except the one of the flagman inviting him to proceed across the street.
That from the point where the plaintiff first stopped the car south of the crossing to the point of the collision was about sixty feet, and the entire crossing was about one hundred and fifty feet wide.
The collision occurred on track No. 3 or No. 3 1/2, the fifth or sixth track from the south.
That some of the plaintiff's teeth were knocked out, some of his ribs broken, one leg seriously injured and he received many more external and internal injuries.
He had always been in good health prior to the injury and weighed one hundred and sixty-two pounds; but since then he had never been well or regained his strength and had fallen off thirty-four pounds.
That at the time of his injury he was earning about $ 70 to $ 75 per month, but since the injury he had not been able to put in full time.
Morris Sharp, witness for plaintiff, testified that he was a passenger on a south or westbound car which reached the south side of the crossing and stopped there at the same time that the car on which plaintiff was motorman stopped at the same place, and while the car on which witness was was still standing at this place, the watchman gave the plaintiff a signal and after the plaintiff's car was started and going across the crossing, the witness saw the defendant's car shoot...
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