Strother v. Dunham
| Decision Date | 05 March 1917 |
| Docket Number | No. 12255.,12255. |
| Parties | STROTHER v. DUNHAM et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.
"Not to be officially published."
Action by Samuel B. Strother, administrator of the estate of George H. Cousins, deceased, against Robert J. Dunham and another as receivers of the Metropolitan Street Railway Company. Judgment for the plaintiff, and defendants appeal. Affirmed.
John H. Lucas, of Kansas City, for appellants. Wm. T. Campbell, of Kansas City, for respondent.
Plaintiff below recovered the sum of $3,000 as damages for the death of George H. Cousins, and defendants, after taking the proper step, appealed.
The first point made by appellants is that the demurrer to the evidence should have been sustained. The evidence in this case is very conflicting, and, as it is necessary for us to state the evidence, we will only take that part of it that is most favorable to plaintiff. We do this because a demurrer to the evidence admits as true every fact which the testimony tends to prove and every inference that may be reasonably drawn therefrom.
On November 2, 1914, the date of the death of George H. Cousins, Bluff street was a public street in Kansas City, Mo., running in a northeasterly and southwesterly direction. The defendants were operating a street railway upon said street with south-bound tracks on the west side of said street and northbound tracks on the east side thereof. Sixth street is a street running east and west in said city and intersects said Bluff street about 320 feet north of the place where the deceased first rode upon defendants' tracks.
The evidence was that about 300 feet south of Sixth street, defendants' tracks, some time before the day in question, made a turn toward the west to cross a bridge spanning some railroad tracks; that some time prior to the accident said bridge was closed for the purpose of repairs; that a temporary bridge had been erected from 90 to 150 feet south of the bridge being repaired, and defendants' tracks were routed over the temporary bridge; that said Bluff street and said temporary bridge, both of which were public streets, afforded practically the only means of access for persons living in the northern and northeastern part of the city to the West Bottoms in said city, where are located a great many of the city's largest industries.
From Sixth street to a point opposite to said permanent bridge defendants' tracks sloped toward the south, on a grade of about 4 per cent. From said old bridge to said new bridge defendants' tracks had been temporarily constructed upon loose earth and rock thrown on the street and making an upward grade from the old bridge to the new one of about 2 per cent. That by reason of the temporary character of the street foundation under said tracks and the great amount of traffic going over said street, the earth between the south-bound tracks had been depressed below the top of said tracks from 3 to 4½ inches. That starting from a point 25 or 30 feet south of the old bridge, there was piled upon the west side of defendants' tracks dirt, stone, and other materials that entirely obstructed the use of said side of the street, so that south-bound traffic was forced onto the tracks of the defendants, and as a result of such obstruction, and by reason of the fact that the tracks were so much higher than the dirt between, vehicles that were between said tracks could not turn out.
Shortly after 7 o'clock on the morning of November 2, 1914, the deceased, a boy 21 years and 3 days old, while riding a bicycle on his way to his work in the West Bottoms, and proceeding west on Sixth street, reached the tracks of the defendants on Bluff street. At that time a south-bound car had almost come to a safety stop on the north side of Sixth street. The deceased passed about 50 feet in front of said car and turned to the south, riding along within 4 or 5 feet of the outer rail of defendants' south-bound tracks with his back to the car. He continued so to ride at the rate of about 15 miles per hour southward on Bluff street until he approached within 10 feet of the dirt, rock, and material that obstructed his passage, and at that point he turned diagonally onto the south-bound tracks of defendants and proceeded to ride southwardly between said tracks, and, after having so ridden some distance, he was struck, run over, and killed by said car. The evidence is very conflicting as to how far deceased rode after he turned onto the tracks, but there is evidence tending to show that he so rode as much as 120 feet. The evidence further shows that, after the deceased crossed in front of said car at Sixth street, it came to a stop and started up again; that when deceased rode upon the car tracks the car was about 100 feet to his rear, going at the rate of about 12 miles per hour; that the tracks were wet and slick; that it was plain daylight and there was nothing to obstruct the view of the motorman; and that the car at the place where the deceased was run over and killed could have been stopped under the circumstances within 40 to 50 feet. There is no evidence as to the rate of speed the deceased was riding after he turned upon the car tracks. The evidence further shows that the car ran from 60 to 150 feet after striking the deceased, and that its speed was not slackened until the deceased was struck; that the defendants' motorman in charge of said car knew of the condition of said street and knew that all traffic going southward would be diverted across defendants' tracks by reason of the débris in the street.
In support of their contention that the demurrer to the evidence should have been sustained, defendants make the point that deceased was not in a position of imminent peril and unaware of the same, and oblivious of his danger. It is true that the deceased saw the car when it was about to stop on the north side of Sixth street. This was from 365 to 370 feet north of where he turned onto the track. The deceased knew that the car was stopping, and consequently had to start again, for he looked at the car when he crossed Sixth street. For these reasons he probably thought that he would have plenty of time to turn on the track at the point where he did, and proceed across the temporary bridge; but it is conceded that this conduct on deceased's part was negligence, and consequently, if his representative can recover at all, he must recover on the "humanitarian" doctrine, one of the essentials of which is "obliviousness." However, we do not understand the meaning of "obliviousness" to be the same as is contended for by the defendants here. The defendants contend that deceased had knowledge of the fact that the car was proceeding in the same direction that he was going, and to his rear, and, having such knowledge, he was not "oblivious" of his danger of being struck by it, if he drove on the tracks.
The rule laid down concerning "obliviousness" has been gone over very thoroughly, starting with the leading case of Kinlen v. Met. St. Ry. Co., 216 Mo. 145, 115 S. W. 523. It has been now definitely settled that a case comes within the humanitarian rule even though it is shown that the deceased had knowledge of the approach of the car or train, if it further appears that he was "oblivious" of the impending danger.
In a recent case it was shown that plaintiff was crossing a street in front of a street car, and that when his horses' front feet were on the first track he looked up and saw a car 300 feet away; that he said nothing to the driver and paid no further attention to the car. Trimble, Judge, in writing the opinion, stated that the fact that plaintiff knew of the approaching car did not necessarily mean that he was not "oblivious" to the danger, and in the course of the opinion it is stated:
"But, if he goes on when the car is so far away that he reasonably supposes that he has time to get safely across, he has knowledge of the car but is `oblivious' of the danger." Ingenio v. Met., 179 S. W. 772.
In another recent case plaintiff was driving a heavily loaded wagon eastwardly and in the direction of an on-coming street car. The street was narrow, and a standing wagon obstructed the side of the street upon which plaintiff was driving, and he deflected...
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