Stussy v. Kansas City Rys. Co.

• Decision Date: 07 February 1921
• Docket Number: No. 13832.,13832.
• Citation: 228 S.W. 531
• Parties: STUSSY v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

228 S.W. 531

STUSSY v. KANSAS CITY RYS. CO.

No. 13832.

Kansas City Court of Appeals. Missouri.

February 7, 1921.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

"Not to be officially published."

Action by A. H. Stussy against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and Chas. N. Sadler, C. L. Carr, and E. E. Ball, all of Kansas City, Mo., for plaintiff in error.

John J. Cosgrove and McLaughlin & Cosgrove, all of Kansas City, Mo., for respondent.

TRIMBLE, P. J.

Plaintiff and a lady companion were riding in a buggy south on Baltimore avenue, and, in crossing the street car track on Eighth street at the intersection thereof with said avenue, was struck and injured, by an east-bound street car. He brought this suit for damages, and recovered a judgment for $1,500, from which defendant has appealed.

The petition pleaded general negligence. The answer set up contributory negligence in going upon the track without listening for the approach of a car, and in going upon the track when he knew his view was obstructed. The case was submitted on the question of negligent speed and failure to warn.

We cannot uphold defendant's contention that the demurrer to the evidence should have been sustained. The buggy was plaintiff's, the horse belonged to the lady, and she was driving, being a clever horsewoman.

As stated, they were coming south on Baltimore avenue, approaching the intersection at Eighth street which runs east and west. On this latter street were two parallel street car tracks, the north track being the westbound and the south one being the east-bound track. Something had caused a blockade or a stoppage and collection of cars on the north, or west-bound, track, part of them, at least one, having stopped at the east edge of Baltimore avenue, and another west-bound car at the west edge of said avenue, the rear portion of said car extending somewhat out into the intersection. West of and in front of this car were other cars extending on westward to the next street.

The southwest corner of the intersection was an ordinary stop for east-bound cars on the south track to let off and take on passengers, and, whether there were any or not, the cars made a stop there in the nature of a safety stop before proceeding east across Baltimore avenue and onto the viaduct, which began at the eastern edge of the avenue. The intersection was a much-traveled place, and many people could be expected to he passing there at any and all times.

When the two occupants of the buggy came to the first or north street car track, the driver stopped the buggy, and both looked to the west to see if an east-bound car were coming on that track. There was no need to look east, as the cars on both sides of the intersection on that track were standing motionless. Plaintiff could see through the windows of the cars standing on the west-bound track and to the west of the intersection, and saw no car coming. He also listened for a car, and the lady driver appeared to be listening, but neither heard any. The driver then started the horse in a walk, about 4 miles an hour, to continue on their way south and across the east-bound track. When the horse had gotten his head over the first rail of the east-bound track and was upon the track, plaintiff saw the car coming at a rate of about 20 miles per hour; bearing down upon them a short distance away. The driver saw it too, for she urged the horse forward ',as did also the plaintiff), and it responded, getting the buggy almost across, but the car struck the rear wheel, wrecking the buggy and throwing both of the occupants out and insuring them. The lady, however, died before plaintiff's case was tried.

It was shown by evidence of a witness standing on the southwest corner of the intersection at the usual stop, waiting to board the east-bound car (as were also a number of others), that it was down grade from the west to Baltimore avenue, and that the car came down, slightly slackening as if to stop at the corner, but suddenly shot forward with increased speed, past the stopping place and waiting passengers, out into the street, where it struck the buggy and then went on to and upon the viaduct, before it came to a standstill.

Clearly it cannot be said as a matter of law that plaintiff was negligent in going to and upon the track, since he exercised care in looking and listening for a car, and heard none nor saw any, and he could see through the windows for a distance sufficient to lead a reasonably prudent man to think that the crossing could be made before one would arrive. And there is no question of whether negligence of the driver in this case could be imputed to plaintiff, or rather, even if it could be imputed to...