Rush v. Metropolitan St. Ry. Co.

• Decision Date: 29 May 1911
• Citation: 157 Mo. App. 504,137 S.W. 1029
• Parties: RUSH v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

137 S.W. 1029

157 Mo. App. 504

RUSH v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 29, 1911.

Rehearing Denied June 12, 1911.

1. TRIAL (§ 156)—DEMURRER TO EVIDENCE— WEIGHT OF EVIDENCE.

Demurrer to plaintiff's evidence requires that it be given full credit, so far as credible.

2. STREET RAILROADS (§ 117) — COLLISION WITH VEHICLES—NEGLIGENCE—JURY QUESTION.

In an action for injury to a passenger in a sight-seeing automobile, struck by a street car, whether the motorman negligently failed to use available means to prevent the accident held, under the evidence, a jury question.

3. NEGLIGENCE (§ 93) — COLLISION WITH VEHICLES—CONTRIBUTORY NEGLIGENCE—IMPUTATION.

Negligence of the chauffeur of a sight-seeing automobile contributing to a collision with a street car is not imputable to a passenger, as

affecting the street railway company's liability to the latter.

4. NEGLIGENCE (§ 83)—"HUMANITARIAN DOCTRINE"—SCOPE.

The humanitarian rule takes no account of how the danger was created, but confines itself to the question whether a reasonably careful and prudent man, in the situation of the operator of the threatening instrumentality, would have discovered and averted the danger had he exercised reasonable care.

5. DAMAGES (§ 216)—PERSONAL INJURY—INSTRUCTIONS.

An instruction authorizing recovery for lost time, resulting from personal injury, of an amount exceeding that pleaded, is error.

6. DAMAGES (§ 144)—PERSONAL INJURY— LOST TIME—PLEADING.

Lost time resulting from personal injury is damage which must be specially pleaded.

7. PLEADING (§ 234)—PETITION—AMENDMENT —ORDER—NECESSITY.

An amendment of a petition is not effective unless made by order of court, as required by Rev. St. 1909, § 1863, though agreed upon between the parties.

8. APPEAL AND ERROR (§ 1140)—CURE OF ERROR BY REMITTITUR.

Error in authorizing recovery for loss of time resulting from personal injury in excess of $1000, the amount pleaded, is cured by permitting remittitur down to that amount, where there are other elements of damage shown.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Thomas E. Rush against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

John H. Lucas, for appellant. Karnes, New & Krauthoff, for respondent.

JOHNSON, J.

This is a negligence case. An automobile in which plaintiff was a passenger for hire was struck at a street crossing by an east-bound electric street car operated by defendant on its Twelfth street line in Kansas City, and plaintiff was thrown to the pavement and injured. The petition alleges that "the party operating and managing the automobile in which plaintiff was riding, not knowing of the approach of defendant's car, drove said automobile onto Twelfth street and onto the track of defendant's railway thereon, and while he was thus driving one of defendant's said cars approached at a rapid speed from the west, and the motorman controlling the same gave no warning of his approach, and though he saw, or in the exercise of ordinary care might have seen, the position of danger in which the persons in said automobile were placed in time to have stopped said car and prevented a collision with said automobile, he made no effort to do so, but negligently and carelessly continued said car at the same high speed until it with great force and violence ran against said automobile, and by reason of said collision the plaintiff, without any fault or negligence on his part, was thrown from said automobile onto the pavement of said streets." Among the special damages alleged in the petition was loss of earnings, valued at $1,000. The answer is a general traverse. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $1,500, and the cause is before us on the appeal of defendant.

The injury occurred late in the afternoon of July 11, 1908, at the intersection of Twelfth and Central streets. Plaintiff is a lawyer practicing his profession in New York City, belongs to Tammany Hall, and, together with other members of that organization, attended the Democratic National Convention held in Denver in July, 1908. Realizing that arid wastes were to be traversed, necessary supplies were carried on the journey; but on the return trip via Kansas City no liquid sustenance stronger than mineral water was served after the train emerged from the alkaline stretches of Western Kansas. A stopover in Kansas City of 2½ hours was scheduled, and plaintiff and his close companions (seven in all) planned to spend the time going about the city and made careful preparations to present a good appearance. The seven came uptown in a street car which they left at Ninth and Main streets, and, encountering an automobile of the type known as a public sight-seeing car, they struck a bargain with the chauffeur, and, paying the fare demanded, were taken aboard and transported over the city. Riding in the open air engenders thirst, and, on their return from "doing" the boulevards, a stop was made at the Baltimore Hotel, where all alighted, went to the bar, and each took one drink. All chose beer as the best thirst quencher, except plaintiff and the chauffeur, who stuck to mineral water—a drink that neither cheers nor inebriates. Finding they still had some spare time, a suggestion was offered and adopted that they ride around to Convention Hall and view the place where Mr. Bryan was nominated for the presidency in 1900. It must be confessed that the route followed in reaching the building was devious; but we give little weight to that fact and for the purposes of the demurrer to the evidence, which counsel for defendant contend should have been given, accept as true the testimony of the seven that individually and collectively they were sober quiet, and well behaved, and were not intoxicated and disorderly, as some of defendant's witnesses describe their condition.

No doubt the recollection of the consequences following the stirring scenes enacted in that building in the fateful year of 1900 made them all feel sober, and careful, too. From Convention Hall the automobile turned north on Central street and proceeded towards the crossing under consideration. There is much conflict in the evidence over the character of the automobile and its speed as it neared the crossing. According to witnesses for defendant, "not lighter does the swallow skim along the smooth lake's level brim," than did the machine glide towards its doom; while witnesses for pla...