Sethman v. Union Depot Bridge & Terminal R. Co.
| Decision Date | 26 May 1919 |
| Docket Number | No. 13228.,13228. |
| Citation | 203 Mo. App. 381,218 S.W. 879 |
| Court | Missouri Court of Appeals |
| Parties | SETHMAN v. UNION DEPOT BRIDGE & TERMINAL R. CO. |
Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.
"Not to be officially published."
Action by R. C. Sethman against the Union Depot Bridge & Terminal Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Kenneth McC. DeWeese, of Kansas City, for appellant.
Clay C. Rogers and Virgil Yates, both of Kansas City, for respondent.
Plaintiff's automobile, while upon defendant's electric street railway tracks, on the Armour bridge across the Missouri river at Kansas City, was run into and injured by one of defendant's street cars coming from behind and colliding with it. He brought this suit to recover the damage done to the automobile. The jury returned a verdict for plaintiff, upon which judgment was rendered and defendant has appealed.
As submitted, the case was bottomed upon the humanitarian rule, and the issue the jury was called upon to decide was whether, while said automobile (being operated by plaintiff's brother) was upon the track and in a perilous situation with the driver oblivious of the danger, the operator of the street car knew, or by the exercise of ordinary care could have known, of such perilous situation, and that the driver was unaware thereof in time by the exercise of ordinary care and with due regard to the safety of the passengers to have stopped or slackened the speed of the car and thereby avoided striking said automobile. Of course, in the instruction, all the necessary elements of a cause of action based on the humanitarian rule were left to the jury to decide, though, in the way We have stated it above, it might appear as if some of them were assumed.
We are without power to consider the alleged errors complained of in the instructions given for plaintiff, since the assignment in the motion for new trial that "the court erred in instructing the jury as requested by the plaintiff" is insufficient to preserve the alleged errors for review. Section 1841, R. S. 1909; Kansas City Disinfecting Co. v. Bates County, 273 Mo. 300, 201 S. W. 92; Wynne v. Wagoner Undertaking Co., 274 Mo 593, 204 S. W. 15; State v. Lewis, 273 Mo. 518, 201 S. W. 80; Lampe v. United Railways Co., 202 S. W. 438; Seitz v. Pelligreen Const. & Inv. Co., 199 Mo. App. 388, 203 S. W. 503; Nichtman v. United Railways Co., 203 S. W. 491; State v. Dilenkamp, 207 S. W. 770, 771; Probst v. St. Louis Basket Co., 200 Mo. App. 568, 207 S. W. 891; Surbeck v. Surbeck, 208 S. W. 645, 655. This was the only assignment dealing with plaintiff's instructions. The assignment that "the court erred in overruling defendant's demurrer to the evidence, interposed at the close of plaintiff's case," does not refer to the instructions, but only to the sufficiency of the evidence to support a verdict in plaintiff's favor.
The defendant's instructions 4, 7, 9, and 11 were properly refused, since every one of them embodied the element of plaintiff's contributory negligence as a defense to the cause of action resting on the humanitarian rule. Contributory negligence is not a defense in that kind of a case. Of course, if the plaintiff's chauffeur wantonly drove into danger or carelessly drove upon the track so closely in front of the on-coming car that the motorman did not have reasonable time in which to become aware of the automobile's presence, and by the exercise of ordinary care and with due regard to the safety of those in his charge to avert a collision, then there can be no liability. But the refused instructions above mentioned did not submit issues applicable to plaintiff's cause of action, but unqualifiedly made plaintiff's contributory negligence, stated generally, a complete defense thereto. To have given such instructions in a case where the cause of action relied upon was a violation of the humanitarian rule would have been error.
The trial judge's conclusion as to the weight of the evidence is shown by the judgment and the disposition made of the motion for new trial. The record does not in any manner show that the trial judge was convinced that a new trial should be granted, and refused to perform his duty and consequently overruled the motion therefor. Even if the remarks of the trial judge could be considered by us, they show nothing more than that he had some doubts as to what he should do upon the defendant's demurrer to the evidence and motion for new trial, but finally had resolved those doubts in favor of the plaintiff.
This brings us to the final and only question in this appeal, and that is whether there is any substantial evidence to support plaintiff's cause of action, or, to state it a little more closely, whether it appears conclusively, and as a matter of law, that plaintiff's automobile went upon the track so closely in front of the street car that the motorman did not have reasonable time to avoid the collision after he saw or should have seen the danger.
The upper deck of defendant's bridge is for the accommodation of electric street and interurban cars, and also for the ordinary vehicles of road and street traffic, such as wagons, trucks, buggies and automobiles. The middle portion of this deck is occupied: by double electric street car tracks, they running between the trusses, which in the portion of the bridge over the stream itself rise above the upper deck and, upon the cantilever principle, help support the bridge in the spans over the river. A traffic way, for the ordinary street and road vehicles, lies on each side of this middle portion occupied by the tracks and outside of the trusses, the way on the west being for south-bound travel and the one on the east being for the northbound traffic. The upper deck is on a level with the street at the south end of the bridge, which street level is on the top of the bluffs on the south side of the river, and the south end of the bridge proper begins at the edge of the bluffs. The land on the north side of, and for some distance next to, the river, is on a much lower level, and hence a long approach is required until the north end of the bridge proper is reached. The center or middle portion of this north approach is also occupied by the street car tracks with the traffic ways on each side. The floor of the traffic ways and of the car tracks on the bridge proper and the approach are upon the same level, relatively considered, and automobiles are permitted to go upon this middle portion occupied by the tracks in going over the bridge proper and this north approach, the north-bound automobiles entering upon the car track space at the "throat" or south end of the bridge proper near the south tollhouse and passing along over the bridge between the trusses and thence over the approach till the north end of the north approach was reached, where at the "throat" the north-bound automobiles would diverge slightly to the east, through an open space for that purpose, on to the east or northbound traffic way again and thence on north along the roadway. The south-bound automobiles on the west traffic way would enter upon the middle or track portion of the bridge at said "throat" at the north end of said approach, diverging slightly to the east through a similar opening on the west side and opposite the one above mentioned on the east side.
The north tollhouse was not far from the north end of the trusses, and from this north tollhouse northward on the approach to the bridge, for a distance of about 1,250 feet, the traffic ways are...
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