Pope v. Kansas City Cable Ry. Co.

• Decision Date: 27 January 1890
• Citation: 99 Mo. 400,12 S.W. 891
• Parties: POPE v. KANSAS CITY CABLE RY. CO.
• Court: Missouri Supreme Court

12 S.W. 891

99 Mo. 400

POPE v. KANSAS CITY CABLE RY. CO.

Supreme Court of Missouri.

January 27, 1890.

CABLE ROADS — INJURY TO PERSONS ON TRACK.

1. A petition alleging that deceased, in the exercise of due care, was crossing defendant's track, "when the defendant, by its agents and servants, negligently, carelessly, and wrongfully ran its car against the wagon of [deceased,] overturned the same, and killed him," is sufficient when first objected to on appeal.

2. Where plaintiff's evidence, in an action against a cable-road company, shows that defendant was operating the railway in the month previous to the accident, and defendant does not stand on its demurrer to plaintiff's evidence, but gives evidence tending indirectly to show that it was operating the road at the time of the accident, and conducts the case as if that fact were conceded, the overruling of the demurrer is not error.

3. Where plaintiff's evidence tends to show that the gripman saw deceased crossing the track when at such distance that he could have avoided collision by using promptly the appliances at his command for checking the train, the case is properly submitted to the jury.

4. An instruction assuming that defendant's servants were operating the cars is not erroneous, where plaintiff's evidence tends to show that fact, and it is not denied by defendant, but is treated as conceded by both parties.

5. An instruction requiring a vigilant watch of the "track ahead" is not confusing, though there were several parallel tracks.

6. An instruction requiring the gripman to exercise ordinary care to prevent the injury is not erroneous as requiring him to stop his train without regard to the safety of the train or its passengers.

Appeal from circuit court, Jackson county: J. H. GLOVER, Judge.

Johnson & Lucas, for appellant. John W. Beebe, for respondent.

BRACE, J.

The plaintiff is the widow of Nelson M. Pope, who was killed in a collision between a wagon and team that he was driving and a train of cable-cars, near the corner of Ninth street and Grand avenue, in the City of Kansas, on the 1st day of July, 1886. In this action she seeks to recover $5,000 damages for his death, alleging as a cause of action that defendant was operating said cars at the time of the accident, and that her husband, in the exercise of proper care and caution, was crossing its railway track, "when the defendant, by its agents and servants, negligently, carelessly, and wrongfully ran its car against the wagon of said Pope, overturned the same, and killed him."

1. The sufficiency of the petition is questioned for the first time in the brief of counsel in this court. In the trial court no objection was taken to it, either by demurrer or objection to the introduction of evidence, nor was there a motion in arrest of judgment. That it states a cause of action there can be no doubt. Further than to ascertain this fact, we will not look into it. The objection urged against it, however, that it does not specify the particular act of negligence which it is claimed caused the injury, is answered by the cases of Sullivan v. Railway Co., 97 Mo. 113, 10 S. W. Rep. 852; Johnson v. Railway Co., 96 Mo. 340, 9 S. W. Rep. 790.

2. It is urged that the demurrer to plaintiff's evidence ought to have been sustained, because there was no testimony showing that the defendant was operating the train by which the deceased was struck. On the trial neither this nor any other reason was assigned as ground of the demurrer to the evidence. The defendant did not stand on its demurrer, but proceeded to introduce its evidence on the merits. It did appear, however, from plaintiff's testimony that in the month of May or June, just before the accident, the defendant was operating the cable train on this railway; the evidence of the defendant indirectly tended to show that they were operating the road at the time of the accident; and the whole examination by defendant of its witnesses, as well as the...