Shelton v. Metropolitan Street Railway Co.
| Decision Date | 11 November 1912 |
| Citation | 151 S.W. 493,167 Mo.App. 404 |
| Parties | RUTH SHELTON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and James E. Nugent for appellant.
(1) The court erred in the admission of testimony offered by plaintiff. (2) The court erred in not granting the peremptory instruction asked by defendant at the close of plaintiff's case and at the close of the entire case. Mason v. Railroad, 27 Kan. 83; Railroad v Schmidt, 67 Kan. 8; McIlhoney v. Railroad, 120 N.C. 557; Beck v. Railroad, 25 Oregon, 32; Zirkle v. Railroad, 67 Kan. 77; Ry. Co. v Withers, 69 Kan. 620; Railroad v. Holland, 60 Kan. 209; Lamb v. Railroad, 73 Kan. 220; Bressler v. Railroad, 86 P. 472; Burgess v. Railroad, 83 Kan. 497; Railroad v. Clinkenbeard, 72 Kan. 559; Dyerson v. Railroad, 74 Kan. 528, and cases cited. (3) The court erred in giving instruction for the plaintiff.
Oldham & James for respondent.
--Plaintiff commenced this suit in the circuit court of Jackson county to recover damages for the death of her husband which she alleges was caused by negligence of defendant.
The cause of action, if one exists, arose in Kansas and the petition pleads statutes of that State which, in certain instances, give to the widow of one whose death is caused by the negligence of another the right to maintain an action in damages. [Secs. 5319, 5320, Dassler's Gen. Stat. of Kansas, 1905.] Facts are alleged which bring plaintiff within the operation of those statutes and a cause of action founded on what is known in this State as the "humanitarian doctrine" is pleaded. The petition does not plead the laws of Kansas relating to this species of negligence. Defendant did not attack the petition by demurrer or motion but filed an answer tendering the general issue. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of five thousand dollars and after unsuccessfully moving for a new trial and in arrest of judgment, defendant appealed. The death of plaintiff's husband occurred a few moments after nine o'clock in the evening of June 8, 1909, in Kansas City, Kansas, at a place where the double tracks of one of defendant's street railway lines cross Reynolds avenue. This is a public street running east and west which crosses Sixth street at right angles. The two streets are on different levels, Reynolds avenue being much lower than Sixth street. Going south and east the tracks of defendant's railway run on Sixth street to a point just north of Reynolds avenue where they deflect to the southeast, leave Sxith street, which continues on south, and cross Reynolds avenue on an open trestle bridge. The bridge on Sixth street over Reynolds avenue is a short distance west of this railroad bridge which is east of the east line of Sixth street. The latter bridge is about seventy-five feet long and is double-tracked. South bound cars run on the west track and it was one of such cars that killed the husband of plaintiff.
There is strong evidence introduced by plaintiff which tends to show that the railway tracks from Sixth street southeastwardly had became a highway for pedestrians and that such user had been so general and continuous that defendant must be held to have had knowledge of it and to have acquiesced in it. The husband of plaintiff used this pathway. He approached the trestle bridge from the southeast along the west track and without stopping and, apparently, without looking ahead, proceeded to walk over the bridge. He had advanced some ten or twelve feet on the bridge, walking on the crossties, when a south-bound electric street car struck him and inflicted fatal injuries. The car carried an electric headlight, the way was unobstructed, and there was nothing to prevent the unfortunate man from seeing the car in ample time to escape injury, nor to prevent the motorman from seeing him in time to save him by stopping the car or giving warning signals. There is credible evidence to the effect that the deceased made no effort to avoid the car and appeared to be oblivious of its approach until an instant before the collision and that the motorman did not sound the bell nor attempt to stop until the moment of the collision. The speed of the car was six or eight miles an hour and under the conditions obtaining, the car could have been stopped in approximately twenty-five feet. The night was dark and a rain storm was impending but there was enough light cast by more or less distant street lamps to enable witnesses who lived on Reynolds avenue to observe the man go on the trestle and proceed in a manner indicative to them of inattention to his way. He wore a broad brim soft hat tilted forward and walked with downcast face. Counsel for defendant insist that the darkness was too great for these witnesses to discern these appearances and that their testimony should be discarded as wholly incredible but we think their credibility was an issue for the jury. They were on a much lower plane than the bridge,--in looking up at the man saw him in silhouette,--and it does not seem impossible for his general outlines, attitude and movements to have been visible to them. The evidence does not show clearly whether the headlight carried on the car was of sixteen or thirty-two candle power. It was one or the other and we think it a fair inference from the evidence on this subject that a thirty-two candle power light was carried. The jury were entitled to find from all of the evidence that the headlight was strong enough and illuminated the track ahead a sufficient distance for the motorman to have seen the man on the track in ample time to have stopped the car in the intervening space. Had the man become aware of the approach of the car sooner than he did he had two avenues of escape open to him, viz.: to retrace his steps over the ties to solid ground and then leave the track, or to cross over to the other track on the bridge. Each track was on a separate trestle but the two were divided by a space that easily might have been crossed in a single step. These are the salient facts of the case and the principal issues of law we are called upon to determine are those raised by the demurrer to the evidence which defendant argues should have been sustained.
The first question we shall consider is that of the sufficiency of the facts we have stated to support the charge that the death of plaintiff's husband was caused by negligence of defendant in failing to discharge a humanitarian duty it owed him. That the deceased was guilty of negligence that brought him into a perilous situation is a proposition that cannot be and is not disputed. If before going on to the bridge he had but lifted his eyes he would have seen the car approaching and would have realized that he could not cross the bridge in safety on the west track. And even after he was on the bridge he still could have escaped had he exercised reasonable care either by turning back or by crossing over to the east track. The car was not coming fast and its headlight illuminated the track. He was a vigorous man in the possession of unimpaired faculties, and the only reasonable explanation that may be given of his conduct in allowing the car to run him down is that he was walking, as plaintiff's witnesses say, with his attention diverted from the oncoming car and apparently riveted on the way immediately in front of his feet. The darkness was of a degree to require the exercise of special attention in walking over separated crossties and, doubtless, the deceased found it a difficult and absorbing task to walk the ties in safety. No exculpatory explanation can be given for his conduct in going on the bridge with the car visible and in menacing proximity. He knew a car might come at any moment and it was his duty to ascertain before going on the bridge that none would dispute his safe passage over a place so dangerous. A railroad track is a place of danger and the use of a railroad trestle bridge by a pedestrian is especially dangerous. In view of the proof of a general and continuous use of the bridge by pedestrians both by day and by night we shall not say that any attempt of a pedestrian to cross the bridge in the night would be negligent in law, but we do say that one so using the bridge should exercise care...
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