Shubert v. Fleming

• Decision Date: 23 January 1928
• Docket Number: No. 16202.,16202.
• Citation: 1 S.W.2d 852
• Parties: SHUBERT v. FLEMING et al.
• Court: Missouri Court of Appeals

1 S.W.2d 852

SHUBERT v. FLEMING et al.

No. 16202.

Kansas City Court of Appeals. Missouri.

January 23, 1928.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Henry T. Shubert against Fred W. Fleming and another, receivers of the Kansas City Railways Company. From a judgment for plaintiff, defendants appeal. Affirmed.

Charles L. Carr and Watson, Gage & Ess, all of Kansas City, for appellants.

Chet A. Keyes, J. M. Fisher, and R. R. Brewster, all of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000 and defendants have appealed.

The facts show that plaintiff was injured on May 5, 1924, while engaged as a conductor by defendants upon one of their street cars operated in Kansas City, Missouri. Plaintiff's injury was caused by a collision between a south-bound street car on which he was a conductor and a north-bound electric freight engine of defendants, the latter having attached thereto four or five freight cars. Both the street car and the engine were moving at the time.

Defendants admit that the motorman of the street car was guilty of negligence but insist that their instruction in the nature of a demurrer to the evidence should have been given for the reason that plaintiff was guilty of contributory negligence as a matter of law. In considering a demurrer to the evidence, we must take the evidence, and all reasonable inferences that may be drawn therefrom, in favor of plaintiff. Chawkley v. Wabash Ry. Co. (Mo. Sup.) 297 S. W. 20.

Defendants maintained double tracks north of a point about 141 feet south of the south curb of 63d street, the west track of which was for south-bound and the east for north-bound cars; 63d street was 61 feet in width. South of said point south of 63d street defendants maintained but a single track. This was connected with the double tracks to the north by means of a cross-over switch, the switch point being at said place 141 feet south of the south curb line of 63d street. However, it was possible for a south-bound and a north-bound car to come into collision with each other at a point several feet north of the switch point, but the evidence shows that a south-bound car could stand on the double tracks south of 63d street and be in the clear. The street car in question was 48 feet in length. The collision occurred about half way between the south curb of 63d street and the switch point.

For the purpose of controlling train movements on the single track a dispatcher was stationed in a shanty located just north of 63d street on the west side of the double tracks. On arriving at the dispatcher's shanty just before the collision, the street car in question stopped and plaintiff and the motorman went into the shanty for the purpose of getting orders from the dispatcher covering their movement on the single track. Plaintiff testified that they received the following instructions from the dispatcher, "to wait for the train that was coming down and when the train cleared to go ahead." The dispatcher said, "wait until the train came down, it is a little late." The dispatcher, testifying for defendants, stated that his instruction to plaintiff and the conductor was to "wait until block 16, the freight, clears and meet a car at 70th street." It seems that in addition to the electric freight coming north bound there was a passenger car on the single track at or near 70th street and plaintiff's car was to pass the other passenger car at that street.

When plaintiff alighted from the car to go into the dispatcher's shanty, he left the rear doors of the car open and some one, presumably a passenger, closed it. When the rear doors were closed certain lights, constituting a signal to the motorman to start the car, were turned on. The rear doors were to be operated by the conductor. After the orders were given by the dispatcher the motorman got on the car at the front end, plaintiff immediately following him. As they entered the car, plaintiff repeated to the motorman the orders that had been received. When they boarded the car plaintiff saw, about two blocks away, the electric freight train approaching. The motorman started the car as plaintiff was on the last step, about three feet away, and the latter started toward the rear of the car picking up papers as he went. When plaintiff reached the rear end and was about to take his seat upon the conductor's stool he heard a shrill whistle and looking up saw the electric freight train "just a few feet from the car." At that time the motorman "was standing with his hand on the controller, reaching for his stool and placing it." Plaintiff testified that the "crash" came "at the same instant"; that less than a second of time transpired from the time he heard the whistle and looked up to the time of the collision.

The motorman testified that when he passed over 63d street he was going at a speed of about 8 or 10 miles per hour; that he was going at about the same speed at the time of the collision; that he could have stopped the car under the circumstances in 30 to 50 feet. Other testimony tended to show that he could have stopped the car in 15 or 20 feet at the place in question, going at a rate of 10 to 15 miles per hour. The place in question was slightly upgrade. Defendants' witness, Bennett, on cross-examination, testified that the motorman "had plenty of time to stop after he left there before he got to the cross-over switch."

The motorman explained his action in driving his car into the freight train by stating that while he was in the dispatcher's shanty he thought he heard the freight train go by; that he started his car up without looking, but, had he looked, he could have seen the train coming. He testified that he looked both ways on 63d street for...