Rush v. Metropolitan Street Ry. Co.
| Decision Date | 29 May 1911 |
| Parties | THOMAS E. RUSH, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jas H. Slover, Judge.
AFFIRMED CONDITIONALLY.
John H Lucas for appellant.
(1) Appellant contends that this case should be reversed, for the reason that on all the evidence the court should have directed a verdict for defendant. Barnard v Railroad, 137 Mo.App. 684; Hebeler v. Railroad, 132 Mo.App. 551; Gessner v. Railroad, 137 Mo.App 47; Gabriel v. Railroad, 130 Mo.App. 651. (2) The court erred in giving instruction No. 1 at plaintiff's request. Cases under Point I. Garard v. Coal Co., 207 Mo. 242; Holden v. Railroad, 108 Mo.App. 674; O'Farrell v. Railroad, 136 Mo.App. 353. (3) The court erred in giving instruction No. 4 requested by plaintiff. a. Said instruction enlarges the amounts of recovery authorized by the pleadings and the evidence. Vanbuskirk v. Railroad, 131 Mo.App. 357. b. It assumes as true certain disputed questions of fact. Muncy v. Bevier, 124 Mo.App. 10; Plummer v. Milan, 70 Mo.App. 599; Evans v. Joplin, 76 Mo.App. 21.
Karnes, New & Krauthoff and Arthur Miller for respondent.
(1) The negligence, if any, of the chauffeur, could not be imputed to the respondent who was simply a passenger. That doctrine has been irrevocably settled in this state both by the Supreme Court and the Courts of Appeals. Becke v. Railroad, 102 Mo. 544; Sluder v. Transit Co., 189 Mo. 139 Munger v. City of Sedalia, 66 Mo.App. 630; Profit v. Chicago Ry. Co., 91 Mo.App. 373. And a score of other recent Missouri cases, completely overruling the old doctine of Thorogood v. Bryan, 65 Eng. C. L. 114. (2) The evidence clearly shows that the relation of master and servant did not exist between the chauffeur and the respondent. Little v. Hackett, 116 U.S. 366; Randolph v. O'Riordon, 155 Mass. 331; Railroad v. Stembremmer, 47 N. J. Law, 161; Quarman v. Burnett, M. & W. 439. And the rule applies alike to private, as well as to common carriers of passengers. Fechley v. Traction Co., 119 Mo.App. 366. (3) It must be kept in mind that this is a suit by an innocent third party for the concurring negligence of two tortfeasors, and respondent could have sued either or both. Mencomb v. Railroad, 169 Mo. 422; Bragg v. Railroad, 192 Mo. 331; Hubbard v. Railroad, 173 Mo. 255. But the negligence of the chauffeur in charge of the automobile will not release this appellant from liability for its negligence. Taylor v. Railroad, 137 Mo. 363; O'Rourke v. Lyndall Co., 142 Mo. 342. (4) When the motorman saw that the chauffeur in charge of the automobile was giving no heed to the danger, but in all reasonable probability was not intending to stop, but intended to drive on to the railroad track, which would have made him necessarily in a perilous situation, the motorman ought to have checked his car, or, if necessary, to have stopped it, and he was not justified in delaying action until it became certain that there would be a collision. The law requires him to exercise ordinary care to prevent accident. Holden v. Railroad 177 Mo. 470; Bunyan v. Railroad, 127 Mo. 21; Hale v. Railroad, 124 Mo.App. 671.
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 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 cars 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 one thousand dollars.
The answer is a general traverse. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of fifteen hundred dollars 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 stop-over in Kansas City of two and one-half 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 up town 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 plaintiff spoke disrespectfully of the vehicle and one of the seven called it "an old tub." They say it toiled slowly and painfully along at not to exceed six miles per hour. We shall not say the evidence of plaintiff is unreasonable; to do so would require us not only to repudiate the testimony of apparently credible witnesses, but to speak in terms of too great praise of "sight-seeing" automobiles. From the viewpoint of the demurrer to the evidence we must give full credit to the evidence of plaintiff and discard nothing except that which overtaxes credulity. Consequently, we assume that the automobile was running six miles per hour when it started across the track. A double-truck street car equipped with air brakes and other modern appliances was approaching from the west on the south track. Witnesses differ about the speed of that car but the general opinion is that its speed was twelve miles per hour. Expert evidence introduced by plaintiff states that the street car could have been stopped in twenty-five or thirty feet, while that of defendant is that a stop could not have been made in less than seventy-five feet.
There was no obstacle to prevent the motorman seeing the automobile or the chauffeur from seeing the street car. It is conceded the chauffeur approached the crossing without altering the speed of his car and it appears to us that he depended on the care of the motorman for the safety of his passengers. His confidence was misplaced for, according to the evidence of plaintiff, the street car came on without slackening speed and the motorman did nothing to avert a collision. The street car struck the automobile squarely in...
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