Potter v. Metropolitan Street Railway Company
| Decision Date | 21 February 1910 |
| Citation | 126 S.W. 209,142 Mo.App. 220 |
| Parties | FREDERICKA POTTER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.
AFFIRMED.
Judgment affirmed.
J. H Lucas, A. F. Smith, W. F. Guthrie and Boyle & Howell for appellant.
E. H Gamble and Rosenberger, Taylor & Reed for respondent.
This is an action for damages brought by plaintiff on account of the killing of her husband by the alleged negligent act of defendant's servants in running a car over him. She recovered judgment in the trial court.
It appears that the defendant operates an electric street railway system in Kansas City and has a double track on Twelfth street. At an eastern point on this street there was a place where cars from the west, running east on the south track, were switched or run over to the north track and there made ready for the return trip west on the north track, that is to say, at that point the south track ceased to run parallel with the north track, by crossing over into the north track, the two thus becoming one track and extending on east, as a single track, a sufficient distance to allow a car from the west to run onto it and there be put in condition for its return trip west, as just stated. This was done by the motorman raising and fastening up the fender on the east end of the car and lowering the one on the west end; and the conductor unfastening the rope at the west end attached to the trolley pole and walking to the east end with it, thus turning the pole to the east end of the car. In this way the front end of the car going east was made the rear end going back west. It frequently happened that before a car would be made ready at this place to start on its return trip west, another car from the west would arrive, and it would stop up west on the south track, a safe distance, until the other car started out. On the occasion in question the motorman of the car which had been run in onto the north and single track, had adjusted the fender at either end of the car and the deceased had taken the trolley rope from the west end and walked around to the east end where he was to put the pole on the wire and tie the rope. To do this he was in the middle of the track behind the car, when a car from the west arrived, and instead of stopping, it, from some cause, continued rapidly on, crossing over onto the north track and violently colliding with the standing car so that it was knocked back thirty feet or more and ran over the deceased, killing him instantly. The collision likewise killed the motorman of the incoming car.
The negligence charged is special and consists of several different acts. First, in failing to have the appliances for controlling the car in good repair; second, in failing to make proper use of such appliances and in failing to properly control and operate the car; third, in failing to sound any warning of its approach so that deceased might have gotten off the track from behind the standing car. Defendant has taken the position that plaintiff has made no proof of negligence against its servants--that there is no such proof in the record--and that she, therefore, is driven to the necessity of undertaking to uphold the judgment by applying the rule of res ipsa loquitur whereby she calls upon a presumption of negligence to eke out her case. And defendant says she cannot do this for the reason that having taken upon herself to allege that she knew the character of negligence which caused the death and specifically stating what it was, she had destroyed her right to ask the aid of the presumption which obtains by the rule of res ipsa loquitur, and must prove the acts alleged, or a sufficient part of them, unaided by any presumption under that rule. Now if it be true that plaintiff has not made any proof of negligence and depends on a presumption under the rule referred to, defendant is right, and she must fail in her case; since where special negligence is charged the rule of res ipsa loquitur does not apply. [McGrath v. Transit Co., 197 Mo. 97, 94 S.W. 872; Roscoe v. Met. Street Ry. Co., 202 Mo. 576, 101 S.W. 32; Beave v. Transit Co., 212 Mo. 331, 111 S.W. 52; Evans v. Railroad, 222 Mo. 435.]
Defendant seems to assume that proof merely of the mishap, or the thing which injures or kills, is not proof of negligence. Frequently it is not, and in a certain class of cases a presumption will arise in favor of the plaintiff, supplying the lack of proof, and the defendant has the burden of freeing himself. As an instance, and for illustration only, a passenger is injured by an act of the carrier. He does not know what caused the thing resulting in his injury, but he has the right to assume it was some negligence on the part of the carrier and though he does not know what it was, he may still institute his action by alleging, generally, that it was negligently caused and the law will aid him by presuming that it was, and this presumption is sufficient to entitle him to a recovery unless the defendant can exculpate himself by otherwise accounting for it.
But in the innumerable ways in which injuries result from the act of another it is not infrequent that proof of the act will itself demonstrate or show the character of the act. If it shows it to be negligent, then there is no need of a presumption, and there is neither necessity nor room for application of the presumption arising from the rule of res ipsa loquitur. We refer to Hamilton v. Railroad, 123 Mo.App. 619, where these matters were discussed by us.
We will therefore consider whether the proof of the collision of the cars whereby deceased was run over and killed, does not, of itself, establish the negligence alleged. The evidence of the collision showed that it occurred by the incoming car continuing at its rapid rate of speed with no apparent effort to stop it, though the standing car was in full and immediate view. The place was on a slight down grade though practically on a level, and there was no attempt to set the brakes, nor to ring the bell or make any outcry of warning, when the...
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