Recktenwald v. Metropolitan St. Ry. Co.

• Decision Date: 05 November 1906
• Citation: 97 S.W. 557,121 Mo. App. 595
• Parties: RECKTENWALD v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

97 S.W. 557

121 Mo. App. 595

RECKTENWALD v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

Rehearing Denied November 19, 1906.

1. STREET RAILROADS — OPERATION — NEGLIGENCE —COLLISION WITH VEHICLE.

Though plaintiff while driving along a street railroad track failed to look back, the railroad was liable under the "humanitarian" doctrine for a collision between plaintiff's vehicle and a car running in the same direction as the vehicle, where it appeared that the motorman, if keeping a lookout, would have seen plaintiff's peril in time to have avoided the injury.

2. SAME—ACTION—ISSUES AND PROOF.

In an action against a street railroad for injuries sustained in a collision between plaintiff's vehicle and a car, the petition alleged that while plaintiff was driving along the track defendant negligently ran the car against plaintiff's wagon; that the operatives of the car saw or might have seen plaintiff in a position of imminent peril in time to have siackened the

speed of the car or to have stopped in time to have prevented the collision. Held, that if defendant's servants saw, or could have seen, that plaintiff was in a place of danger in time to have avoided the collision by ordinary precaution, plaintiff was entitled to recover under the petition, although the "humanitarian" doctrine was not applicable because his perilous situation was not the result of his own negligence.

3. SAME—INSTRUCTIONS.

Where, in an action for injuries arising from a collision between plaintiff's vehicle and defendant's street car, it appeared that plaintiff was driving along the track ahead of the car and that he relied on hearing the bell, and there was evidence that no such signal was given, an instruction that if defendant's servants saw plaintiff's peril, or could have seen it in time to have avoided the collision, and plaintiff was free from negligence, the jury might return a verdict in his favor was proper.

4. APPEAL—REVIEW—INVITED ERROR.

Where, in an action against a street railroad for injuries, instructions offered by defendant assumed that it was operating the car, which ran into plaintiff's vehicle, defendant could not complain on appeal of an instruction for plaintiff, which assumed that defendant was operating the car, though the question whether defendant was operating it was in issue.

5. STREET RAILROADS — NEGLIGENCE — EVIDENCE —ADMISSIBILITY.

In an action against a street railroad for injuries sustained in a collision between plaintiff's vehicle and a car, the motorman who was operating the car at the time in question was asked whether he was in defendant's service at the time of the trial, to which he responded in the negative, and he was then asked when he quit working for defendant, to which he replied he could not tell exactly. Held, that defendant was not prejudiced by such evidence.

6. SAME—INSTRUCTIONS—CARE REQUIRED.

In an action for injuries sustained by plaintiff, owing to a street car running into his vehicle while plaintiff was driving along the track ahead of the car, defendant requested an instruction that, though the motorman saw plaintiff, he had the right to assume that plaintiff would get across or off the track and out of danger of a collision with the car before it would reach him, and that the motorman was not required to stop the car nor slacken its speed until there was actual danger of a collision. The instruction was given with a modification consisting in adding "if he gave warning of the approach of the car" after the words "had the right to assume." Held, that the modification was proper; a contention that defendant was not required to perform any act looking to the safety of persons on the street until they were found in a perilous position being untenable.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Peter Recktenwald against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John H. Lucas, Ben T. Hardin, and H. H. McCluer, for appellant. Walsh & Morrison and Horace H. Blanton, for respondent.

BROADDUS, P. J.

This action is based upon the alleged negligence of the defendant in the operation of its street car whereby the plaintiff was injured. The evidence on the part of the plaintiff shows that, on the 28th day of March, 1903, while he was driving his vehicle north along Main street in Kansas City, Mo., in close proximity to, and part of the time upon, the tracks of the defendant, he was struck by one of defendant's cars going in the same direction, which had the effect of throwing him from his vehicle, and whereby he was injured. The plaintiff was driving a blind horse, and was sitting between two other persons when the car struck his wagon. He drove unto Main street from Thirty-Third street, and proceeded north until he approached Twenty-Ninth street, at which time there were several other wagons proceeding slowly in the same direction. He was aiming to pass these wagons, and, in doing so, it was necessary for him to approach closely the tracks in question. He was thus traveling part of the time, some witnesses say, with one wheel on the track for a distance of from 100 to 150 feet when, in order to pass the last of said wagons, he pulled onto the track, at which time he was struck by defendant's car. He did not look back at any time for an approaching car, but trusted to his hearing for that purpose. He and his witnesses state that no bell was rung by the motorman until just before the car struck the wagon, and too late to avoid the collision. The car ran about 100 feet before it was stopped. Plaintiff stated that it was inconvenient for him to look back, sitting as he was between the two other persons. At the point in question the street is down grade. The time of the occurrence was daylight, the track in good condition; and it was shown that the car in question could have been stopped in a distance of 50 feet. The defendant's motorman testified that he was ringing the bell, but for another wagon close to the tracks; that he did not see plaintiff's wagon until just before he struck it; and that he stopped the car in about 30 feet after the collision. To the plaintiff's case, as thus made, defendant interposed a demurrer which the court overruled. Plaintiff recovered in the sum of $1,500, from which defendant appealed.

Defendant contends that, as plaintiff could have seen the approaching car, and avoided the injury had he looked, he was guilty of such contributory negligence as precluded his right to a verdict. This claim ignores the negligence of defendant's motorman in failing to see plaintiff's peril after he got upon the tracks in time to have avoided the collision. That is to say: "Where the plaintiff has been negligent a recovery can never be had on account of defendant's mere negligence." The defendant's position in this respect is based upon its construction of the meaning to be given to the ruling in Markowitz v. Railroad, 186 Mo., 350, 85 S. W. 351, 69 L. R. A. 389. It was there held that "a showing of a mere possibility that the accident might have been avoided in spite of plaintiff's contributory negligence is not sufficient to authorize the invocation of the humanitarian doctrine." The holding has no application here, as it was shown that the motorman saw, or could have seen if he had been looking, which it was his duty to do, that plaintiff was in peril and unaware of his danger, in time by the exercise of ordinary precaution to have avoided the collision. The position is sought to be upheld by the holding in Tanner v. Mo. Pac. Ry. Co., 161 Mo. 497, 61 S. W. 826. But there is nothing in that case that tends to support defendant's theory. It is merely a statement of the humanitarian rule which the court holds does not apply under the facts in evidence. In Morgan v. Wabash Railroad Co., 159 Mo. 262, 60 S. W. 195, the humanitarian doctrine was elaborately discussed in an opinion...