Scott v. Metropolitan Street Railway Company
| Decision Date | 31 May 1909 |
| Citation | 120 S.W. 131,138 Mo.App. 196 |
| Parties | KEARMAN M. SCOTT, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Ben T. Hardin for appellant.
The court erred in refusing to give defendant's demurrer offered at the close of plaintiff's evidence, and in refusing a similar instruction offered by defendant, at the close of all the evidence in the case. Gettys v. Transit Co., 103 Mo.App. 564; McLeland v. Transit Co., 105 Mo.App. 473; Kimble v. Railway, 108 Mo.App. 78; Hyman v. Transit Co., 108 Mo.App. 458; Hensler v. Stix, 113 Mo.App. 162; Sims v. Railway, 116 Mo.App. 572, and cases cited; Fechley v. Traction Co., 119 Mo.App. 358; Diamond v. Kansas City, 120 Mo.App. 185; Wallack v. Transit Co., 123 Mo.App 167; Hebeler v. Railway, 132 Mo.App. 551; Davies v. Railway, 159 Mo. 1; McGauly v. Transit Co., 179 Mo. 583; Mockowik v. Railway, 196 Mo. 570; Higgins v. Railway, 197 Mo. 300. The court erred in giving instruction numbered 1 for plaintiff, on the measure of damages. Hooper v. Railway, 125 Mo.App. 329; Boyd v. Transit Co., 108 Mo.App. 303; St. Louis v. Kansas City, 110 Mo.App. 653; Arnold v Maryville, 110 Mo.App. 254; Camp v. Railway, 94 Mo.App. 272; Jacquin v. Cable Co., 57 Mo.App. 320; Flynt v. Railway, 38 Mo.App. 94; Matney v. Grain Co., 19 Mo.App. 107; Badgley v. St. Louis, 149 Mo. 122; McGowan v. Ore & Steel Co., 109 Mo. 518; Hawes v. Stock Yards, 103 Mo. 66; Stephens v. Railway, 96 Mo. 207; Stewart v. Clinton, 79 Mo. 603. The court erred in refusing instruction numbered 1, as asked by defendant. It is the law applicable to defendant's theory of the case, and to the evidence adduced by the defendant; and defendant was entitled to have the jury so instructed upon its theory and evidence. Murray v. Transit Co., 176 Mo. 183; Wren v. Railway, 125 Mo.App. 604; Hartman v. Transit Co., 112 Mo.App. 446, 449; Wands v. Railway, 106 Mo.App. 96; Gray v. McDonald, 28 Mo.App. 492; Cahn v. Reid, 18 Mo.App. 115.
Henry J. Latshaw for respondent.
The following Missouri decisions also sustain respondent's position: Vessels v. Railroad, 129 Mo.App. 708; Schepers v. Railroad, 126 Mo. 665; Simonton v. Railroad, 106 S.W. 46; McDonald v. Railroad, 108 Mo.App. 374; O'Brien v. Railway, 185 Mo. 263; McGuire v. Railroad, 113 Mo.App. 79; Binsbocher v. Railroad, 108 Mo.App. 1; Archer v. Railroad, 110 Mo.App. 349; Foland v. Railroad, 119 Mo.App. 284; Kohr v. Railroad, 117 Mo.App. 302; Reynolds v. Railroad, 189 Mo. 408; Van Horn v. Railroad, 198 Mo. 481; Gates v. Railroad, 125 Mo.App. 334.
This is a suit to recover damages for injuries alleged to have been received by plaintiff through the negligence of defendant on the 19th day of November, 1906, at about 5:30 o'clock p. m. at the intersection of Twelfth and Walnut streets in Kansas City. Twelfth street runs east and west; Walnut street runs north and south; they cross each other at right angles and in each defendant has double tracks of its electric railway. At the intersection of the two streets is a point for letting off, taking on or transferring passengers. As a precaution for safety, the cars going in any direction stop on reaching the crossing before passing over it.
Prior to the time mentioned the defendant had operated its cars on Twelfth street by cable. For the purpose of letting go the cable of the cable cars, the track had a jog or kink in it just west of Walnut street, which had the effect of lessening the distance between the two tracks, thus leaving a space between passing cars of about six inches. This jog had the effect also of causing cars to wabble so that the bumpers of passing cars sometimes struck each other. The car in use at the time we speak of was an old-fashioned car with an entrance or exit at each end, one on the outside of the track and the other on the inside or next to the other track.
The plaintiff was intending to take passage on an east-bound car on Twelfth street at said crossing and when the car stopped on the west side of the Walnut street tracks passengers were getting off and on the car, and, seeing that the outside entrance and platform were crowded with passengers, he concluded he would go around and get on at the east end of the car between the two tracks. When he got there, he found it was also crowded with passengers, still he succeeded in getting onto the steps and into the vestibule of the car, but passengers in their endeavor to alight crowded him out and down onto the ground. About this time, a west-bound car was standing on the north track east of the crossing. Plaintiff, holding to the car, attempted to get back to his former position on the car upon the platform, but other passengers had got before him and forced him down, and he was therefore unable to get entirely back upon the platform. While he was in this position and unable to get farther into the car, the motorman on the west-bound car started it over the crossing. The plaintiff saw it when it was fifteen or twenty feet away and, realizing his peril, motioned the motorman to stop; and other passengers, seeing plaintiff's danger, cried out to the motorman to stop; but the motorman, heedless of the warnings, if he saw or heard them, or not under-standing their purport, failed to stop his car and plaintiff was caught between the two cars and severely injured. Plaintiff was familiar with the condition of the tracks at the point in issue, but at the same time he was familiar with the practice of defendant not to allow the cars to pass one another there. The plaintiff did not see the approach of the west-bound car until he was making the second effort to get upon the car. The west-bound car was moving slowly and stopped within the distance of five or six feet after plaintiff was caught between the two cars. Plaintiff testified on cross-examination that the car he tried to board was packed; that he saw it was impossible to get on at the rear end. After he got around to the other end of the car, notwithstanding the platform was crowded, he thought he could get on as he saw persons getting off.
There were several grounds of negligence alleged in the petition, but the issue was narrowed to the allegation of negligence on the part of defendant in maintaining its tracks in a dangerous proximity to each other. The plaintiff recovered and defendant appealed.
At the close of plaintiff's evidence, defendant tendered a demurrer which the court overruled. It is insisted by defendant that the court committed error in refusing its demurrer because plaintiff's own testimony showed that he knew he was going into a position of peril and that he made no effort to extricate himself from such position.
Plaintiff admitted his familiarity with the condition of the tracks at the place where he received his injury and must have known that, if a car should pass while he was making his second effort to get upon the platform, he was exposed to danger from his position on the steps outside of the vestibule. But, notwithstanding such must be conceded, at the same time, in measuring the extent of his culpability, we must take into consideration also the further established fact that he was familiar with the practice of defendant to avoid having its cars pass each other at this particular point. And we must take into consideration the further fact that he was at a place where he had the right to be, as it was a place provided by the defendant for the taking on and letting off of passengers. He had the right, under such conditions, to assume that there was no danger to be apprehended from a passing car going west. It is true, if he had looked, he could have seen that a car was approaching from the east, but at the same time he was not bound to watch for it to continue its passage over the crossing while the car which he was boarding had not first passed over before meeting the other as was the practice. He had the right to presume that defendants would do their duty in that respect. [Percell v. Railroad, 126 Mo.App. 43.]
But it is contended that, plaintiff knowing of impending danger, it was his duty to make the proper effort to avoid it, which he could have done in an instant by making two steps northward which would have placed him out of danger. Plaintiff was on the steps of the car when he saw the west-bound one approaching at a distance of fifteen or twenty feet and it was possible for him to have quit his position and crossed the north track to a place of safety, had he been diligent and, if there had been no other apparent means of avoiding danger, he should have done so in the exercise of reasonable care; but he had also another apparent means of escape from impending danger and of which he availed himself, and that was to signal the motorman to stop his car. Under the circumstances, he had the right to suppose that, as he was in plain view of the motorman, the latter would in all probability see his signal and stop the car in time to avoid injuring him. In considering what a person in his situation should have done, we must make due allowance for his action and, if the result showed that his safest course would have been to have abandoned his position and fled across the north track for safety, still, if his action at the time was consistent with that which a person in the exercise of reasonable care might on the spur of the moment also have adopted, he was not guilty per se of negligence. On such occasions, it will not do to require the same degree...
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