Raber v. Kansas City Rys. Co.

• Decision Date: 10 June 1918
• Docket Number: No. 12913.,12913.
• Parties: RABER v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

204 S.W. 739

RABER v. KANSAS CITY RYS. CO.

No. 12913.

Kansas City Court of Appeals. Missouri.

June 10, 1918.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially published."

Suit by Emory Raber against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

Chas. N. Sadler, of Kansas City, for appellant. Brewster, Kelly, Brewster & Buchholz, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff was an employé of defendant, working in one of its car barns where cars were received or stored on tracks running in from the street. He was known as a hostler or utility man and, among other things, it was his duty to receive cars and assist the crew in running them to a place to which they were to be stored for the night. He claims that in performing this duty with one of the cars the motorman or conductor, or both, so carelessly and negligently conducted themselves in moving the car as to seriously injure him. He recovered judgment in the trial court.

There was conflict in the testimony given for either side, and plaintiff obtained the verdict. Hence we must assume to be the facts whatever the evidence in his behalf tends to prove. It appears from that testimony that the barn faces east, and that there are six tracks therein; that the car involved in this controversy was brought in from the street by the crew when plaintiff got upon the rear vestibule and assisted in getting it on the sixth track, where it was to be backed to the west end of the barn; the sixth track ran east and west parallel with the south wall, so that a car would be about twelve inches from the wall; there was a fence at the west end, and plaintiff was directing the motorman to run the car in question back to the fence; that he ran it back a considerable distance, to within four or five feet of the fence, when the trolley left the overhead wire and the car stopped; whereupon plaintiff got off, stepped behind the car, took hold of the rope hanging from the trolley, and put the wheel on the wire. Just as he did that the motorman started the car suddenly backward, caught plaintiff, and inflicted serious injury upon him.

It was shown that in such work, when a trolley left the wire, the motorman should not start the car until plaintiff signaled that the way was clear. In view of this testimony there can be no doubt that plaintiff made a case for the jury.

But there are various objections made to the rulings of the trial court which we must notice, though they are mainly of a technical character. There was evidence tending to show that when the car was started back without signal plaintiff was pretty well hemmed in. In front of him was the car, behind him was the fence, north of him, between tracks 6 and 5, was a lot of old iron and car wheels while south of him across the track, was the wall running parallel with the track, yet there was room there for his escape. He made the attempt in that direction and was caught. In his situation there was no place at all for application of what defendant calls his error of judgment or that he selected a dangerous course when a safe one was open. Ills case is wholly unlike Eliot v. Railroad, 204...