Ross v. Metropolitan St. Ry. Co.

• Decision Date: 05 June 1905
• Citation: 88 S.W. 144,113 Mo. App. 600
• Court: Missouri Court of Appeals
• Parties: ROSS v. METROPOLITAN ST. RY. CO.<SMALL><SUP>*</SUP></SMALL>

88 S.W. 144

113 Mo. App. 600

ROSS v. METROPOLITAN ST. RY. CO.^*

Kansas City Court of Appeals. Missouri.

June 5, 1905.

1. STREET RAILROADS—INJURY TO PEDESTRIAN —CONTRIBUTORY NEGLIGENCE—EVIDENCE.

In an action against a street railroad company for injuries to a pedestrian who was struck by a car, evidence held to show plaintiff guilty of contributory negligence.

2. SAME—DUTY TO CONTINUE TO LOOK AND LISTEN.

It is the duty of a person crossing railway tracks to devote his attention to his line of travel during the time he is within the range of passing cars, and to look and listen until he is safely across, and it is not sufficient merely to look before going on the track.

3. SAME—DISCOVERED PERIL—HUMANITARIAN DOCTRINE.

Though one cannot recover for injuries where his own negligence contributes in any degree to the immediate cause of the injury, yet, if he has negligently exposed himself to danger, which another perceives in time to avoid injury, but fails to do so, such other is liable, and the contributory negligence of the injured person is no defense.

4. SAME—DUTY OF MOTORMAN.

It is not the duty of a motorman operating a street car to stop merely because he observes a pedestrian approaching the track, but he is only required to stop when something in the conduct of the pedestrian indicates that he is unaware of the presence of the car, and apt to be struck by it.

5. SAME—QUESTION FOR JURY.

In an action against a street railroad company for injuries to a pedestrian who was struck by a car, evidence held to justify submission to the jury of the question whether defendant's motorman observed plaintiff's danger in time to have avoided the injury.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Myron E. Ross against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas, for appellant. Frank P. Walsh and E. R. Morrison, for respondent.

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by defendant's negligence. Judgment was for plaintiff in the sum of $2,000.

The refusal of the trial court to direct a verdict for defendant is assigned as error.

The pertinent facts disclosed by the evidence are as follows: On the evening of July 20, 1901, plaintiff was injured at the intersection of Fifteenth and Holmes streets— two public thoroughfares in Kansas City. Two lines of cable cars operated by defendant had their junction at that place. One (the Fifteenth street line) ran east and west on Fifteenth street. The cars of the other (the Holmes street line) ran to and from their western terminus on Fifteenth street to Holmes, and thence south. The junction was effected by curved tracks, one of which (that connecting the south track on Fifteenth with the west track on Holmes) was used by cars south bound. The length of the curve, measured upon the rail nearest the southwest corner, was 70 feet. Where it began on Fifteenth street, the rail was 17 feet 9 inches from the curb; at its end on Holmes it was 12 feet; and at a point 40 feet from the beginning, 5 feet 9 inches. Plaintiff, coming from the west on the sidewalk along the south side of Fifteenth street for the purpose of boarding an east-bound car, left the sidewalk a few feet west of the corner, and proceeded in a northeasterly direction to cross the curved tracks. From the point where he stepped from the curb to the first rail, he traveled a distance of 7 feet 2 inches. A few feet beyond this—the evidence does not disclose just how far—he was struck by a Holmes street car rounding the curve from west to south, and injured. No claim is made of an excessive verdict. Therefore it is unnecessary to describe the injuries inflicted.

It is asserted by defendant, and we think conclusively shown by the evidence, that plaintiff failed to act with proper care for his own safety. In broad daylight, with nothing to obstruct his view, and knowing of the presence of the car, he walked into the collision. He attempted to exonerate himself from blame with the following account of his misadventure: He had been standing upon the sidewalk 25 or 30 feet—the exact distance is unimportant—west of the corner, engaged in conversation. As he started on his way he saw the car standing on Fifteenth street at the entrance to the curve, about 35 feet from where he was afterwards struck. As he stepped from the curb, he looked again, noticed the car had not moved, and, dismissing it from his attention, proceeded at an ordinary walk. The bell was not rung and no warning given until the car was upon him. He was struck by the south corner of the fender which projected from the front end of the car. Owing to the sharpness of the curve in the track, this corner of the fender was at the time, as near as can be ascertained from the evidence, from 3 to 4 feet from the inside rail, so that the distance from the curb where plaintiff last observed the car to the place of contact was from 10 to 11 feet. The cable which furnished the motive power did not round the curve. The grade slightly declined to the east and south. Therefore, with the car standing as described by plaintiff, it could be moved only by force of gravity. To credit plaintiff's story requires the belief that while he was walking a distance of 11 feet—an act which did not consume more than two seconds—the car started, gained headway, and traveled 35 feet. A few figures and a moment's reflection will demonstrate the impossibility of the occurrence as described, particularly in view of the fact that no witness gave the speed of the car beyond 7 miles per hour, and the great weight of the evidence fixed it at about 5. But accepting plaintiff's statement, even in the face of the physical conditions which so plainly contradict it, his conduct must nevertheless be pronounced grossly careless. He had no right to assume when he stepped from the curb that his way was clear. A person crossing railway tracks, in the observance of ordinary care, must devote his attention to his line of travel during the time he is within the range of passing cars. He should not content himself with a last look when entering into the sphere of danger, and then blunder on, oblivious to his surroundings, but must continue to look and listen until safely across.

Plaintiff's counsel evidently recognized the indefensibility of their client's pretension that he acted with due care in walking against a moving car, for they refrained from submitting to the jury, in the instructions asked by them, any other issue of negligence than that involved in the alleged neglect of the gripman to make proper effort to stop...