Smith v. Metropolitan Street Railway Co.
| Decision Date | 03 March 1913 |
| Citation | 155 S.W. 54,169 Mo.App. 610 |
| Parties | WILLIAM SMITH, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jas. E. Goodrich, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas for appellant.
Frank M. Lowe, and Charles Shannon for respondent.
--Plaintiff sued to recover damages for personal injuries he alleges were caused by negligence of defendant. The cause of action pleaded in the petition and submitted to the jury is founded on a negligent breach of what is known as the humanitarian rule. The answer is a general denial. The cause is before us on the appeal of defendant from a judgment of five thousand dollars recovered by plaintiff in the circuit court. Counsel for defendant argue that the court erred in not sustaining the demurrer to the evidence and we shall state the facts material to the issues thus arising.
The injury occurred late in the afternoon of September 7, 1907, on Union avenue in Kansas City. This street is in front of the Union passenger station and its general course is from northeast to southwest. Witnesses speak of it variously as running east and west and north and south, so that the terms north side and west side are used synonymously as are also the terms south and east side. For convenience we shall speak of that part of the street in front of the station as running north and south. Going north from the station the street is on an up-grade and runs straight to a bridge over railroad tracks where it deflects towards the east. Going south the street runs on a straight line to the south end of the station where it turns towards the west. Defendant has a double track street railway on this street and was operating a northbound electric car on the east track. The car collided with a beer wagon being driven by plaintiff and inflicted the injuries in controversy. The wagon was of the type used by breweries in carrying keg beer but was loaded with cases of bottled beer which were being taken to an express office at the south end of the station. Plaintiff drove southwest on Union avenue on the west track until after he crossed the bridge when a car coming up from behind compelled him to leave that track to allow it to go by. Other vehicles prevented him from turning off to the right and he pulled his team to the left and drove on and along the east track, intending to return to the west track as soon as he could "get a clearance" that is, as soon as other vehicles on that part of the street would afford him a passageway. He was driving in a slow trot and traveled fifty feet or more on the east track before he pulled towards the right and started to leave that track. About this time he observed a northbound car approaching on the east track. The car was 175 or 200 feet away and was traveling at a speed estimated by other witnesses at ten or twelve miles per hour. Plaintiff testified:
Witnesses introduced by plaintiff state that the car did not slacken speed as it neared the wagon; it struck the hub of the left hind wheel and threw the rear end of the wagon around towards the west in a way to point the horses towards the southeast instead of the southwest. Two beer cases were thrown off the wagon and plaintiff was pitched from his seat towards the southeast and thrown to the curb on the east side of the street. Witnesses for defendant state there was no collision between plaintiff's wagon and a street car but that plaintiff was driving fast and recklessly and drove into the curbstone.
Counsel for defendant attempt to avoid the legal consequences of this apparent conflict in the evidence by taking the position that the version of the injury given by plaintiff and his witnesses is so manifestly false and so opposed to physical law as to be barren of probative strength and value. It is contended that the testimony of plaintiff's witnesses is self-contradictory and obviously false as to material facts. For example, an eyewitness who was standing near the scene of the injury stated that plaintiff's team was headed towards the west track and that the hind wheel was sliding along the west rail of the east track when the street car, with unslackened speed, struck the hub and threw the wagon around and pitched plaintiff to the curb on the east side of the street (the curb was seven or eight feet from the east track.) On cross-examination the witness said:
Defendant urges that if plaintiff remained in his seat until after the car had passed on he could not have been thrown from the wagon by a collision, but this argument is based on a misunderstanding of the idea the witness...
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