Smith v. Kansas City Rys. Co.

Decision Date23 May 1921
Docket NumberNo. 14031.,14031.
Citation208 Mo. App. 139,232 S.W. 261
PartiesSMITH v. KANSAS CITY RYS. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Thomas L. Smith against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. E. Ball, of Kansas City, and L. T. Dryden, of Independence, for appellant.

C. W. Prince, E. C. Hamilton, E. A. Harris, and Jas. N. Berry, 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 $3,000, and defendant has appealed.

The facts show that about 5 p. m. on the afternoon of January 14; 1919, plaintiff was crossing Holmes street at its intersection with Twenty-Fourth street, in Kansas City, Mo. He was walking on the south side of Twenty-Fourth street toward the west. In the center of Holmes street defendant maintained a double street car track, running north and south. When plaintiff reached the center of the first, or north-bound, track he noticed a south-bound street car about 200 feet to the north, coming at a rate of speed of from 12 to 15 miles per hour. He testified, "I thought I would stop there and let this car pass me." The south-bound car came to a point nearly opposite to where plaintiff was standing on the north-bound track and stopped, and while there a north-bound car struck plaintiff, knocking him several feet toward the east. The car which struck plaintiff ran several car lengths before it stopped. Before plaintiff stepped upon the north-bound car track he looked to the south, but could see for a distance of two blocks only, or to the top of a hill; the grade for the first block from plaintiff to the top of the hill being slight, and that for the second block being marked. Plaintiff was standing facing northwest, with his back to the south. The car that struck him was proceeding at the rate of 25 to 30 miles per hour.

Plaintiff was carried into a nearby drug store, where he regained consciousness for a very short time, when he became unconscious, and remained substantially in that state for 11 or 12 days. He was taken to the city hospital in an ambulance. His face was bloody, his scalp lacerated, and his eyes swollen. Four stitches were taken in his scalp. His leg was broken in three places. He remained unconscious in the surgical ward of the hospital for 3 days, when he grew worse. During this period his leg was temporarily set, but the attending physician thought he was suffering from a fracture of the skull, and treated him for concussion of the brain, paying but slight attention to the broken leg. This doctor admitted that he made a mistake in diagnosis. At the end of this period he was removed to the death ward, where he remained for 6 or 7 days, when he regained consciousness, and his leg was set and put in a plaster cast. He remained in the hospital about six weeks. After being in the hospital for 3 days his tongue became so swollen that it was necessary to feed him with a stomach tube; his eyes were swollen, red, and discolored; his face was swollen, and he had a high fever and involuntary bowel and kidney movements. He suffered fractures of the two bones of his left leg. There was one fracture of the tibia, or large bone, and two of the fibula. The fracture of the large bone mended in such a way that one end overlapped the other, and they grew together laterally. This had a tendency to weaken the leg on account of the "weight-bearing axis" not being in the center of the bone. At the time of the trial, which was on February 16, 1920, plaintiff's inability to control his bowels was somewhat improved, but his kidneys were in no better condition. He was not able to control his urine at night, and to hold it in the daytime but for a moment. He was still suffering from weakness in his leg. There was expert testimony that the weakened condition of his leg would be permanent.

Defendant's first point is that its instruction in the nature of a demurrer to the evidence should have been sustained. In this connection defendant insists that there was no evidence tending to show within what distance the car that struck plaintiff could have been stopped, with reasonable safety to the passengers, by the motorman in the exercise of ordinary care after he saw, or might have seen, that plaintiff was not going to get off the track. There is a plain inference from the evidence that plaintiff was on the track with his back turned toward the north-bound car, preoccupied or engrossed in watching the south-bound car, at the time the north-bound car came over the brow of the hill two blocks away. All this was apparent to the motorman who operated the car that struck plaintiff; the motorman's view being unobstructed. There is no direct evidence of the distance from the top of the hill to the point where plaintiff was struck, but the south-bound car ran 200 feet at the rate of 12 miles per hour, and stopped while the north-bound car ran the two blocks at the rate of 25 miles per hour; therefore the north-bound car must have run upwards of 416 feet while plaintiff was in full view of the motorman and was making no effort to get off the track, but was preoccupied, as aforesaid. There was nothing to indicate to the motorman that plaintiff was going to get off the track. It needed no expert testimony to show within what distance the car that struck plaintiff could have been stopped at the rate it was going. Under the circumstances the court and the jury by the use of ordinary intelligence and common sense could determine that the car could have been stopped in that distance under the conditions named. Latson v. St. Louis Transit Co., 192 Mo. 449, 463, 91 S. W. 109; Beier v. St. Louis Transit Co., 197 Mo. 215, 232, 94 S. W. 876. It was for the jury to say whether the position and conduct of plaintiff indicated to the motorman that he was not going to get off the track, and was therefore in a position of danger and oblivious thereof. Draper v K. C. Rys. Co., 199 Mo. App. 485, 203 S. W. 646.

Complaint is made of instructions C—1 and C—2. It is insisted that these instructions do not require the jury to find that there was something in the manner and demeanor of plaintiff to indicate to the motorman that plaintiff was oblivious of the approaching car. These instructions required the jury to find that the motorman saw, or could have seen, plaintiff in a position of danger and "oblivious of said danger; that is, unaware thereof." The instructions therefore fully meet this contention of the defendant. It is further insisted that the instructions in submitting the question of whether the motorman could have stopped...

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