Peterson v. Chicago & A. Ry. Co.

Decision Date30 June 1915
Docket NumberNo. 17345.,17345.
Citation265 Mo. 462,178 S.W. 182
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Jas. E. Goodrich, Judge.

Action by Albert Peterson against the Chicago & Alton Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This suit was instituted in the circuit court of Jackson county by the plaintiff, to recover the sum of $1,999.99 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 $1,250, 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 35 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, Mo. 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 7 years. Lydia Avenue runs north and south, and First street east and west. The latter street, at the point of collision, had 16 railroad tracks laid therein, and in the former there was located a double street railway track. That intersection was known as the "16 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 employé 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 4 feet in width, the whole avenue being about 50 feet wide. The street railway tracks were approximately laid in the center of the avenue, and each rail was about 4 feet and 8 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, among 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 10 or 12 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 4 to 6 miles per hour, and was only 6 or 8 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 20 feet, he then turned on an the 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 60 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 60 feet, and the entire crossing was about 150 feet wide. The collision occurred on track No. 3 or No. 3½, 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 162 pounds; but since then he had never been well or regained his strength, and had fallen off 34 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 west bound 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 cars shoot out from the west side of Lydia avenue and strike plaintiff's car. He could not see the defendant's car until it came into Lydia avenue because of other cars standing along on the west side of Lydia avenue and obstructing this witness' view to the north. He did net see or hear any one give a signal from the time plaintiff's car started across the tracks up to the time of collision. The defendant's cars on coming into Lydia avenue were going so fast that the witness in his opinion could not run and keep up with them. The street car was, the witness thought, in about 10 feet of the track on which the collision occurred when he first saw the defendant's car come into Lydia avenue. Witness was 50 or 60 feet from the point of collision looking north along Lydia avenue towards it. Fred Brown, witness for the plaintiff, testified that he was on a track north of the one on which the collision occurred about 100 yards west of Lydia avenue at the time of the collision; that he immediately went down to the place of collision, and noticed several strings of cars standing along the west side of Lydia avenue.

P. H. Neyhart, witness for the plaintiff, testified: That he was a passenger on the car of which plaintiff was motorman at the time of the collision, was a clerk at Heim's Brewery, that he was sitting on the second or third rear left-hand seat; was reading a newspaper. He looked out the window when the, car stopped preparatory to going across, and after doing so, started to read his paper again. The next he noticed was that the defendant's cars were approaching the track on which was the street car. They were so close that he saw there was bound to be a collision. He noticed cars standing up close to the west side of Lydia avenue on the tracks intervening between the south side of to a crossing and the track on which the collision occurred. The collision happened within probably seven or eight seconds after he first saw the defendant's cars. The other cars along the west side of Lydia avenue were so close to the west side of Lydia that he could not see the defendant's cars at an earlier moment. That the defendant's cars were going, in his judgment when he first saw them about 15 miles an hour. That when he first saw the defendant's cars, in his judgment they were not more than 40 feet away, and the car on which he was riding was from 20 to 24 feet long, and he was in the rear part of it. That if he had looked earlier he could not have seen the defendant's cars until they were within approximately 6 feet of the west side of Lydia avenue. That the cars on the west side of Lydia avenue stood about that distance.

William L. Cooper, witness for the plaintiff, testified: That he was a passenger on the street car at the time of the collision. He was on the front seat of the west side. That the car stopped on the south side of the crossing as usual. That the motor man...

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