Ross v. Metropolitan Street Railway Company
| Decision Date | 05 June 1905 |
| Citation | 88 S.W. 144,113 Mo.App. 600 |
| Parties | MYRON E. ROSS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas for appellant.
(1) The court erred in submitting the issues tendered by the plaintiff to the jury, for the reason that under the evidence the court should have declared as a matter of law there could be no recovery. Unless it be the law, that a party can recover who negligently runs into a train the cause ought not to have been submitted. Boyd v. Railway, 105 Mo 380; Watson v. Railway, 133 Mo. 250, 252; Payne v. Railway, 136 Mo. 585; Tanner v. Railway, 161 Mo. 497; Holwerson v. Railway, 157 Mo. 216; Ries v. Transit Co., 179 Mo. 1; Moore v. Railway, 176 Mo. 574; Zumalt v. Railway, 178 Mo. 615; Gettys v. Transit Co. Mo. ; Nellis, Street Surface R. R., pp. 367 368, 373; Maxey v. Railway, 113 Mo. 11; Roenfell v. Railway, 79 S.W. 706, 710; Felling v. Railway, 80 S.W. R. 51; Kreis v. Railway, 148 Mo. 321; Petty v. Railroad, 179 Mo. 675-9; Reno v. Railway, 79 S.W. 467-9; Davis v. Railway, 159 Mo. 1; McFadin v. Catron, 120 Mo. 252; McKeen v. Calvert, 59 Mo. 244; State v. Taylor, 134 Mo. 154; Lokart v. Buchanan, 50 Mo. 203.
Frank P. Walsh and E. R. Morrison for respondent.
(1) The question of negligence in this case was properly one for the jury, the facts being in dispute. Baird v. Railway, 146 Mo. 281, l. c.; Gratiot v. Railway, 116 Mo. 466; St. Clair v. Railway, 29 Mo.App. 87; Steube v. Foundry Co., 85 Mo.App. 644; Price v. Barnard, 65 Mo.App. 651; Bartley v. Trorlicht, 49 Mo.App. 299. (2) Even though plaintiff may have been negligent, the gripman saw his peril in ample time to have stopped the car and avoided injuring him. Bunyan v. Railway, 127 Mo. 12; Holden v. Railway, 177 Mo. 456; Winters v. Railway, 99 Mo. 517; Heinzle v. Railway, 81 S.W. 856; Septowsky v. Transit Co., 102 Mo.App. 110; Jett v. Railway, 178 Mo. 672; Meeker v. Railway, 178 Mo. 173; Cooney v. Railway, 80 Mo.App. 233.
Action to recover damages for personal injuries alleged to have been caused by defendant's negligence. Judgment was for plaintiff in the sum of two thousand dollars. 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 seventy feet. Where it began on Fifteenth street the rail was seventeen feet nine inches from the curb; at its end on Holmes it was twelve feet and at a point forty feet from the beginning five feet nine 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 travelled a distance of seven feet two 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 twenty-five or thirty 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 thirty-five 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 three to four 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 ten to eleven 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 eleven feet an act which did not consume more than two seconds, the car started, gained headway and travelled thirty-five 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 seven miles per hour and the great weight of the evidence fixed it at about five.
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 the car after becoming aware of plaintiff's danger.
Assuming then that plaintiff was negligent in failing to observe the approach of the car; that defendant also was negligent in not ringing the bell or giving other warning and that both of these acts concurred in placing plaintiff in a position of danger no recovery can be permitted without it appears that these concurring acts of negligence were superseded as a proximate cause of injury by the sole negligence of the defendant for the rule is elementary that if the plaintiff by his negligent act contributes in any degree to the immediate cause of injury he has no cause of action whatever the negligence of the defendant may be. The doctrine of comparative negligence has been repudiated repeatedly by the appellate courts of this State. [Boyd v. Railroad, 105 Mo. 371; Holwerson v. Railway, 157 Mo. 21; Fellenz v. Railroad, 80 S.W. 49; Moore v. Railroad, 176 Mo. 528.]
But when a plaintiff has reached a position of peril not in wantonness nor with intent to expose himself to injury but through inattention and carelessness and is unconscious of his danger until too late to extricate himself the negligence of the defendant who comprehending his situation in time to avoid injury deliberately runs him down occupies the whole field of culpability to the exclusion of all other acts of negligence and presents itself as the sole producing cause. In such case the contributory negligence of plaintiff but serves to afford a condition for the operation of the final act. [Bunyan v. Railway, 127 Mo. 12; Holden v Railway Co., 177 Mo. 456; Heinzle v. Railway, 81 S.W. 848; 182 Mo. 528; Septowski v. Transit Co., 102 Mo.App. 110, 76 S.W. 693; Jett v. Railway, 178 Mo. 664; Meeker v. Railway Co., 178 Mo. 173; Cooney v. Railway Co., 80 Mo.App. 226;...
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