Strauss v. Metropolitan Street Railway Company
| Decision Date | 27 May 1912 |
| Citation | 148 S.W. 209,166 Mo.App. 153 |
| Parties | IGNATZ J. STRAUSS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Charles N. Sadler for appellant.
Oldham & James for respondent.
Plaintiff 's action is for damages alleged to have bene caused by defendant running into his wagon with one of its street cars throwing him out and inflicting painful injury. He recovered judgment in the circuit court.
The action is founded on the humanitarian rule. Plaintiff was approaching defendant's street car track with his horse and wagon. He was driving, and his son sitting beside him. The evidence tends to show that he could have seen the approaching car for as much as two hundred feet from the crossing; and the motorman saw him, or could have, had he been looking, when he was one hundred and twenty-five feet away, as the view was not obstructed. Plaintiff drove along, in a walk, without stopping or urging the horse. He testified that the last time he saw the car it was about one hundred feet away, and he thought he had plenty of time to cross ahead of it. And upon that testimony defendant insists that if the plaintiff, knowing of the approach of the car, thought he had time to cross, he cannot blame the motorman for the same error of judgment.
But can we declare, as a matter of law, that if a plaintiff thinks he has time to cross a track before an approaching car can reach him, the motorman cannot be charged with negligence in failing to attempt to stop? That question is answered in the negative in Heintz v. St. Louis Transit Co., 115 Mo.App. 667, 671, 92 S.W. 353. In that case Judge BLAND well says the fact that a motorman honestly believes with the plaintiff that the latter will be able to clear the track before the car reaches him, will not excuse the company, as a matter of law. For the motorman knows the speed of his car and the distance from the crossing, while the other party, looking into the end of the approaching car, cannot gauge its speed with any such accuracy. The two persons are not on equal ground, and the mistake of the person attempting to cross the track, will not, as a matter of law, justify the motorman in the same mistake.
We are cited to Roenfeldt v. St. Louis & S. Ry., 180 Mo. 554, 568, 79 S.W. 706, as stating a different rule. We think it does not. It is said in that case, where there was no evidence to show that the motorman could have stopped the car, that what was reasonable judgment for the plaintiff would be reasonable judgment for the motorman. But in the case at bar it was shown that the motorman could have stopped this car within forty feet.
Nor is it true, as seems to be contended by defendant, that in this case, founded upon the humanitarian rule, plaintiff's prior contributory negligence in getting himself into a perilous position, will relieve the defendant whose servants saw him, or by ordinary care could have seen him, in that position, in time, in the exercise of ordinary care, to have saved him by stopping the car. [White v. Railroad, 202 Mo. 539; Wing v. Railroad, 211 Mo. 1; Ellis v. Met. St. Ry. Co., 234 Mo. 657, 138 S.W. 23; Shipley v. Met. St. Ry. Co., 144 Mo.App. 7, 128 S.W. 768; Williams v. El. Ry. Co., 149 Mo.App. 489.]
The foregoing disposes of defendant's objection to plaintiff's instructions in submitting ...
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