Ross v. Metropolitan St. Ry. Co.

• Decision Date: 29 June 1908
• Citation: 112 S.W. 9,132 Mo. App. 472
• Parties: ROSS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

112 S.W. 9

132 Mo. App. 472

ROSS v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 29, 1908.

1. STREET RAILROADS—COLLISION WITH VEHICLES — NEGLIGENCE—CONTRIBUTORY NEGLIGENCE.

In an action against a street railway company for injuries sustained by the driver of a team in a collision with a street car, the evidence of plaintiff, to which defendant demurred, showed that plaintiff, while driving along the street car tracks, on observing the approach of a car, attempted to leave the track, but became hemmed in by other vehicles and was unable to do so, and that the motorman saw, or by reasonable care should have seen, the situation of plaintiff, but failed to stop the car or make any effort to avoid the collision until too late. Held, that the demurrer to the evidence was rightfully overruled, since the facts shown by plaintiff established defendant's negligence, without contributory negligence of plaintiff, as matter of law.

2. SAME—INSTRUCTIONS—CONTRIBUTORY NEGLIGENCE —HUMANITARIAN DUTY.

In an action for injuries to a driver of a team, sustained in a collision with a street car, an instruction that, although plaintiff was himself guilty of negligence in driving along or across the track of defendant at the time and place of the collision, that alone will not discharge the company or its employés from the observance of reasonable care in the management of its cars, is erroneous, as ignoring the defense of contributory negligence, and in not restricting the application of the principle stated therein to the doctrine of humanitarian duty.

3. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE —HUMANITARIAN DOCTRINE.

It is the fact that a person is in danger and has perhaps been negligent that calls the humanitarian doctrine into play.

4. SAME — "HUMANITARIAN DOCTRINE."

The foundation of the humanitarian doctrine is the principle that no person has the right knowingly or negligently to injure another, when he knows, or should know if he is reasonably careful, that his fellow is in danger of injury at his hands, and he possesses the means of removing that danger.

5. TRIAL—INSTRUCTIONS—CURE BY OTHER INSTRUCTIONS.

Where the instructions of the successful party state an erroneous rule and those of the

defeated party state the rule correctly, the latter should not be considered as curative of the former, since the only presumption permissible in such cases is that, as the instructions are conflicting, the jury discarded the true for the false.

Appeal from Circuit Court, Jackson County; Henry L. McCune, Judge.

Action by John Ross against the Metropolitan Street Railway Company for injuries sustained in a collision with a street car. From a judgment for plaintiff, defendant appeals. Reversed.

John H. Lucas, F. G. Johnson, and C. C. Madison, for appellant. F. J. Chase and George H. Smith, for respondent.

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Verdict and judgment were for plaintiff in the sum of $870. The injury occurred on the morning of September 29, 1903, on Main street, in Kansas City, at a point just north of the north line of Missouri avenue, a cross-street. As a part of its street railway system in Kansas City, defendant operates a single-track line on Main street over which it runs only north-bound cars. Plaintiff was driving a wagon loaded with two tons of coal, and was accompanied by a man to help in unloading. He drove south on Main street, and, as he approached Missouri avenue, his team and wagon were over the west rail of defendant's track. He and his witnesses state that he was compelled to drive along the track by the presence on the street of a large number of other vehicles. Observing a street car coming from the south, he attempted to go over to the west of the track, but was prevented from so doing by the fact that he was hemmed in by other vehicles, and, besides, his team could not be made to move with celerity on account of the heavy load. Plaintiff testified: "Well, I pulled over as near to my side as I could get, and commenced driving, looking for an opening, and, as the car neared me, I seen about a 10 or 12 foot space in front of me, and so I made for that, and commenced whipping the horses and made for that, and beckoned for him [the motorman] to check up because I seen I could not get out of his way unless I did make it with that opening, and I kept whipping up and he kept coming on, so I run my horses in behind that other team there, and that was as far as I could get and I hollered at him as he came closer and he just kept on coming. * * * When he got close enough I says: `Why don't you stop that car? Don't you see I can't get out of the way?' And he just kept coming. * * * Q. What happened then? A. Why, when he hit the wagon, it knocked me off." The car ran at a speed of three and a half to four miles per hour on a slightly descending grade, and no effort was made by the motorman to check speed until about the time of the collision. The facts just stated are taken from the evidence most favorable to plaintiff. On behalf of defendant, the evidence discloses a different state of facts. Witnesses say plaintiff was driving on the east side of the track, that the street was not crowded, and that plaintiff suddenly, and without compulsion, turned his team to the west, attempted to cross in front of the car when it was so close that a collision could not be avoided, and that the motorman, as soon as he discovered the purpose of plaintiff to cross over, made every effort to stop the car and did succeed in greatly reducing its speed.

It is alleged in the petition that the injury was "directly caused by the carelessness and negligence of defendant, its agents, servants, and employés, in this, to wit: that the servants and agents of defendant in charge of said car carelessly, negligently, and unskillfully managed, controlled, and operated said car and caused it to collide with plaintiff's wagon. (2) That the motorman in charge of said car saw, or by the exercise of ordinary care could have seen, plaintif...