Rowe v. Hammond

• Citation: 157 S.W. 880
• Parties: ROWE v. HAMMOND.
• Decision Date: 19 May 1913
• Court: Court of Appeal of Missouri (US)

157 S.W. 880

ROWE v. HAMMOND.

Kansas City Court of Appeals. Missouri.

May 19, 1913.

Rehearing Denied June 16, 1913.

1. MUNICIPAL CORPORATIONS (§ 706) — DANGEROUS INSTRUMENTALITIES — EVIDENCE — SUFFICIENCY.

Evidence in an action for injuries in a collision between a sled on which plaintiff was coasting and defendant's automobile driven by her chauffeur, held sufficient to go to the jury on the issue whether the injury was caused by the negligence of the chauffeur in running into the sled after he became aware, or by ordinary care could have become aware, that plaintiff was in danger.

2. NEGLIGENCE (§ 83) — DANGEROUS INSTRUMENTALITIES — CARE REQUIRED.

Where a person, whether a wrongdoer or not, is placed in a position of peril by an instrumentality operated by another, it is the duty of the latter under the humanitarian rule when he sees or could see the danger, and has the means of averting it, to use all reasonable means to that end.

3. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS.

A person coasting on the street in a thickly settled part of the city in violation of an ordinance is not a trespasser in the sense of being on private property, invading the property rights of another, but is exercising the lawful

right to travel the street for pleasure, but in an unlawful manner.

4. MUNICIPAL CORPORATIONS (§ 705) — NEGLIGENT USE OF STREET — INJURY AVOIDABLE IN SPITE OF PLAINTIFF'S NEGLIGENCE.

That plaintiff was on the streets in violation of a city ordinance, coasting, at the time the automobile collided with his sled was no defense, in an action for damages against the owner of the automobile founded on the humanitarian doctrine.

5. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS — AUTOMOBILES — DUTY TO PEDESTRIANS ON STREETS.

A chauffeur driving an automobile through a thickly settled portion of the city at a high speed, on approaching street crossings is bound to all persons on the street, whether there rightfully or wrongfully, to maintain a vigilant lookout, and to keep his car under control.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Nelson P. Rowe, by next friend, William R. Rowe, against Mary K. Hammond. Judgment for plaintiff, and defendant appeals. Affirmed.

E. R. Morrison, C. A. Bissett, McCune, Harding, Brown & Murphy, and James E. Nugent, all of Kansas City, for appellant. Boyle & Howell, Glen L. Bruner, and Jos. S. Brooks, all of Kansas City, for respondent.

JOHNSON, J.

Plaintiff, a boy nine years old, was injured in a collision between a sled on which he was coasting and an automobile owned by defendant and driven by her chauffeur. This suit is for the recovery of damages resulting to plaintiff from the injury which he alleges was caused by negligence of defendant.

The petition alleges negligence in running the automobile at a dangerous and unlawful speed and also charges negligence under the humanitarian rule. At the close of the evidence the first charge was withdrawn from the jury, and, in the instruction given at the request of plaintiff, the cause was submitted on the issue of whether or not the injury was caused by the negligence of the chauffeur in running defendant's car into the sled after he became aware, "or by the exercise of ordinary care could have become aware," that plaintiff was in a position of danger. The jury resolved this issue in favor of plaintiff, and returned a verdict for him in the sum of $500. Defendant appealed, and her counsel argue that the court erred: First, in refusing their request for a peremptory instruction, and, second, in refusing to instruct the jury that defendant "owed the plaintiff no duty except the duty of using ordinary care to avoid injuring him after his peril, if any, became actually known" to the chauffeur.

The injury occurred about 7 o'clock in the evening of January 14, 1911, at the intersection of Baltimore avenue and Thirty-Seventh street in Kansas City. Plaintiff, two other children, and two adults were coasting down Thirty-Seventh street on a bobsled, and, as the sled was crossing Baltimore avenue at swift speed, it was run into by defendant's automobile which was running at 19 or 20 miles per hour, and all of the riders of the sled were severely injured; one of them being killed outright. The locality is in a thickly settled residence district, all of the streets are paved, and all are much used for purposes of travel. Thirty-Seventh street runs east and west and from Broadway east runs down hill to Main street and beyond, intersecting, in turn, Central and Wyandotte streets and Baltimore avenue, north and south streets. From Broadway to Baltimore avenue the grade is much steeper than it is from Baltimore avenue to Main street. On the evening in question the pavements were covered with ice, and both adults and children were coasting on sleds from Broadway to Main street, where most of the sleds were stopped to avoid crossing street car tracks.

Plaintiff was lying on the front end of the sled, face downward, and was doing the steering. The other riders were seated behind him. The sled carried no light nor any instrument for giving warning, but the riders screamed warning cries as they approached street intersections and the noise they made was plainly heard even in nearby houses. We judge from the evidence of plaintiff that the speed of the sled as it traversed the way between Wyandotte street and Baltimore avenue was from 15 to 18 miles per hour. The automobile was coming south on Baltimore avenue. It carried headlights and the first intimation the riders of the sled had of its approach came from the glare of these lights. There were obstructions at the north-west corner of the street intersection that shut off the view of Thirty-Seventh street to the chauffeur until he reached a point about 100 feet north of the intersection. At that place he could have looked westward on Thirty-Seventh street to a point about 130 feet from the crossing. Witnesses introduced by plaintiff say that the chauffeur, as he approached the crossing, looked straight ahead, did not heed the warning cries heard by every one in the vicinity, and made no effort to reduce speed until the instant of the collision which occurred near the center of the intersection. The car struck the sled just back of plaintiff and swerved to the southeast corner of the streets where it stopped at a point 50 or 55 feet from the place of the collision. Though plaintiff knew the automobile was coming and that a collision was imminent, he did not alter the course of the sled. He and other witnesses say that the sled was going too fast to be turned into Baltimore avenue and that any other alteration of its course would have been dangerous under the circumstances of the situation. Plaintiff was compelled to hold to a straight course, and to depend on the care of the chauffeur for his safety. There was a manhole cover in the center of the street intersection and the place of the collision is fixed by the testimony of the witnesses at or close to this spot. The tires of the rear wheels of the automobile were protected by a network of iron chains, and after the accident it was observed that these chains had cut grooves in the ice from a point 15 or 20 feet north of the manhole; indicating that the rear wheels were at that point when the brakes first were set and that the setting of the brakes by the chauffeur and the collision practically...