Shields v. Kansas City Rys. Co.

• Decision Date: 31 July 1924
• Docket Number: No. 24019.,24019.
• Citation: 264 S.W. 890
• Parties: SHIELDS v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

264 S.W. 890

SHIELDS v.KANSAS CITY RYS. CO.

No. 24019.

Supreme Court of Missouri, Division No. 1.

July 31, 1924.

Motion for Rehearing Overruled August 27, 1014.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Suit by Doris Shields, by her next friend, Franklin Shields, against the Kansas City Railways Company.Judgment for plaintiff, and defendant appeals.Affirmed.

Charles N. Sadler and Mont T. Prewitt, both of Kansas City, for appellant.

Watson, Gage & Ess and William Moore, all of Kansas City, for respondent.

LINDSAY, C.

The plaintiff, a small child, sued by her father as next friend, for injuries sustained through the alleged negligence of the defendant whereby she was run over by one of defendant's street cars, and her left foot and ankle crushed, necessitating amputation of the leg about midway between the foot and ankle.The specifications of negligence in the petition were: (1) That the employees of defendant failed to keep the car in question under control; (2) failed to keep a lookout for adults and children on the street; (3) failed to give plaintiff any warning of the approach of the car; (4 and 5) violated the humanitarian rule.The answer was a general denial followed by a plea that the plaintiff's injuries were due to the negligence of her parents In permitting her to play unattended upon the walk, or parkway near the street car tracks, when they knew or could have known that plaintiff might run or dart out from the sidewalk, in front of a moving street car, at such time, that the operator thereof could not, by the exercise of ordinary care, stop the car in time to prevent injury to plaintiff.An instruction in the nature of a demurrer to the evidence was offered by defendant at the close of plaintiff's evidence, and at the close of the case, and the refusal to give such instruction is urged as error.

I.The injury complained of occurred on Sunday afternoon, at about 2 o'clock, and on February 1, 1920.It was a clear day, and the street and tracks were dry.The plaintiff at the time was 3 years and 9 months old.She lived with her father and mother in an apartment upon the south side Thirty-Ninth street, a street extending east and west, in Kansas City.This apart fronting north on Thirty-Ninth street, was in the block bounded on the west by Terrace street, and on the east by Mercier street.It was agreed that from the center of Terrace street, east, to the center of Mercier street, the distance was 339 feet, and from the east line of Terrace street to the west line of Mercier, it was 290 feet.

The apartment in which plaintiff and her parents lived was the eastern of three apartments fronting north on Thirty-Ninth street, and between Terrace and Mercier streets.East of these was a dwelling, and east of the dwelling was a vacant lot.The apartment where plaintiff lived, as was the others was upon a terrace which was 6 or 7 feet higher than the sidewalk, and it set back about 25 feet from the front of the terrace.At the foot of the terrace was the sidewalk with a parkway between it and the curb.The width of the sidewalk and parkway together was 12 feet.The distance from the curb to the south rail of the south or east bound track of the street railway, was 10 feet and 8 inches.The car which struck the plaintiff was moving eastward on the south track.The plaintiff's mother testified that they lived upon the second floor of the east apartment; that she was preparing dinner; that pending this, and for about half an hour, the plaintiff had been playing with a small tricycle upon the vacant lot, and upon the short terrace east of the dwelling house that has been mentioned as being east of the apartment, and between it and the vacant lot; that the plaintiff called to her from the bottom of the stairway, and she went down to the first floor, at the front, to carry the tricycle upstairs; that she noticed that one handle on the handle bar of the tricycle was gone, and inquired about it; that the plaintiff told her it.came off, and she(plaintiff) thought it could not be fixed, and threw it away; that she told the plaintiff if she got it maybe she(the mother) could fix it back on; that the plaintiff went down the steps, and down the sidewalk eastward, to a point almost upon the west line of the vacant lot, and there stood upon, or very near, the curb.The plaintiff's mother further testified that when she saw the plaintiff standing on the curb she called to her, but that plaintiff did not hear her; that she called the second time, louder, but that the plaintiff did not hear her; that at this time there was a street car coming from the east, upon the north track; that plaintiff waited on the curb until this car got down west, to Terrace street, and then left the curb and started diagonally, northeastward, into the street; that she(plaintiff's mother) at this time saw the car which struck plaintiff, at Terrace street, and moving eastward; that when she saw the plaintiff leave the curb she started from the doorway of the apartment after her, but she did not see the plaintiff at the instant plaintiff got on the track, and was struck.Mr. Moore a witness for plaintiff, was upon the porch of his dwelling which was on the north side of Thirty-Ninth street, and was almost opposite, but a little east of the apartment at which plaintiff's mother was.He testified that he heard the plaintiff's mother call twice, and looked and saw the plaintiff leave the curb, go diagonally into the street and upon the track, and a little east on the tracks, where, as if in the act of stooping down, she was struck by the street car.It appears that the fender of the car passed over the plaintiff, and that she was within the rails, but nearer the north rail.His estimate was that the plaintiff went diagonally from the curb about 15 feet to the track, and thence about 5 feet to the point where she was struck.He testified that, at the time the plaintiff left the curb, the east bound car which struck plaintiff was at or on Terrace street, and that to the best of his recollection the west hound car had passed beyond Terrace street.The same witness testified that the handle of the handle bar of the tricycle was found near the place where the plaintiff was struck.When the car stopped, she was lying on the street, back of the car, and near the rear trucks.

The plaintiff's case was submitted under the humanitarian doctrine.The contention of defendant is that there was no evidence upon which it could be so submitted.The conflicting testimony of the witnesses, and the conflicting contentions made here upon the testimony, have to do mainly with the distance at which the east bound car was away at the time the plaintiff left the curb, and went into the street, with the question whether immediately before she did so an automobile had passed along the south side of this street car, going east, so that, the automobile passing the street car, and passing by where plaintiff stood, was for a time somewhat between the street car and the plaintiff as she thus stood on the curb, and while the street car was approaching the place of collision.In 1some measure the speed of the street car was in issue, and the relative speed of the car and of plaintiff, as she went into the street, and also the question whether she went directly out, or diagonally, northeast.There is also a question as to whether the motorman's attention was somewhat diverted by his being engaged in conversation with two passengers, who occupied the seat nearest to him.The defendant insists that the "believable and undisputed testimony" is the testimony of the motorman, and should govern.The motorman's testimony was that a short distance from where the street car struck the plaintiff a rapidly moving east bound automobile passed the street car on the right or south of it, and that after the automobile had got about 25 feet in front of the street car, the plaintiff ran out from the parking between the sidewalk and the curb, across the space of 10 feet and 8 inches intervening between the curb and the south rail of the track, and immediately in front of the street car; that when the child got in the middle of the track she stopped or stumbled near the north rail, and so low that the fender could not pick her up; that he, the motorman, did everything in his power, the instant the child started off the parkway, to make an emergency stop—ringing the bell, using the sand, and putting the air on, as In emergency—and was unable to prevent running over the child.

The testimony of plaintiff's mother, and o' the witness Moore, as has been already mentioned, was materially different on essential features.Mrs. Shields, the mother, testified that the point where the plaintiff went into the street was about two-thirds of the way eastward from Terrace street toward Mercier street, that is, two-thirds of 290 feet, or about 190 feet east of the east line of Terrace street.She testified that, at the time plaintiff stepped from the curb, the east bound street car was at Terrace street.She testified positively that there was not at the time any automobile passing, nor any one on the street.Moore testified that there was nothing in the street at the time; that, at the time the plaintiff left the curb, the east bound street car was at Terrace street; that the plaintiff left the curbing, and went northeast into the street, and east on the track; that the point where she was struck was from 60 to '1(5 feet east from the doorway of the Shields apartment.None of the passengers —there were not many on the car—saw the plaintiff before she was struck.The only witnesses who saw the plaintiff go into the street were her mother, the witness Moore, and the motorman of the car.Miss Carrie Purcell, a passenger, a witness called by defendant, testified that she could not recall that any automobile passed the street car.She was on the right or south side of the street...