Sugarwater v. Fleming

• Citation: 293 S.W. 111,316 Mo. 742
• Decision Date: 15 February 1927
• Docket Number: 25101
• Parties: Sarah Sugarwater, Administratrix of Estate of Abram Dante, v. Fred W. Fleming et al., Receivers of Kansas City Railways Company, Appellants
• Court: United States State Supreme Court of Missouri

293 S.W. 111

316 Mo. 742

Sarah Sugarwater, Administratrix of Estate of Abram Dante, v. Fred W. Fleming et al., Receivers of Kansas City Railways Company, Appellants

No. 25101

Supreme Court of Missouri

February 15, 1927

Motion for Rehearing Denied April 8, 1927.

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed.

Charles U. Sadler, John R. Moberly and Roscoe P Conkling for appellants.

(1) The court erred in overruling the demurrer interposed at the close of plaintiff's evidence and renewed at the close of all the evidence. (a) There was no evidence of excessive speed shown. Pope v. Railroad, 242 Mo. 232; Laun v. Ry. Co., 216 Mo. 563; Petty v. Ry. Co., 179 Mo. 666; Theobold v. Transit Co., 119 Mo. 432; Case v. Bridge Co., 189 S.W. 391; Blythe v. Ry Co., 211 S.W. 697; Green v. Ry. Co., 192 Mo. 131; State ex rel. v. Reynolds, 233 S.W. 219; Oglesby v. Ry. Co., 177 Mo. 272; Butler v. United Rys. Co., 238 S.W. 1077. (b) There was no evidence that excessive speed was the proximate cause of the injury. King v. Ry., 211 Mo. 1; Bludorn v. Ry., 121 Mo. 258; Blythe v. Ry. Co., 211 S.W. 697. (c) Even if car was running at excessive speed the contributory negligence of respondent bars his right to recover. McCreery v. Ry. Co., 231 Mo. 18; Giardina v. Railway, 185 Mo. 350; Hornstein v. Railway, 195 Mo. 440; Weber v. Railway, 100 Mo. 194; Hogan v. Railway, 150 Mo. 36; Moore v. Railway, 146 Mo. 405; Corcoran v. Railway, 105 Mo. 403; Tesch v. Railway, 53 L. R. A. 618; Dunn v. Railway, 98 Mo. 652; Laun v. Railway, 216 Mo. 563; Boyd v. Railway, 105 Mo. 371; Moody v. Railway, 68 Mo. 470; Holland v. Railway, 210 Mo. 350; Green v. Railway, 192 Mo. 131; Kinlen v. Railway, 216 Mo. 164; Mockowick v. Railway, 196 Mo. 570; Boring v. Railway, 194 Mo. 549; Pope v. Railway, 242 Mo. 239; Reeves v. Railway, 251 Mo. 177; Keele v. Ry., 258 Mo. 78. (d) There was no evidence that respondent relied upon the car being run at the usual rate of speed. Mockowik v. Railway, 196 Mo. 570; Reno v. Railway, 180 Mo. 483; Nixon v. Railway, 141 Mo. 439; Bragg v. Railway, 192 Mo. 331. (2) The court erred in giving instruction numbered 1 asked by respondent. (a) There was no evidence upon which to base it. Steel v. Ry. Co., 265 Mo. 110; Oglesby v. Ry. Co., 177 Mo. 274; Jordan v. Transit Co., 202 Mo. 418; Ralling v. Frisco, 175 S.W. 935; Boyd v. Ry. Co., 236 Mo. 54. (b) It broadens issues made by pleadings. Hall v. Coal & Coke Co., 260 Mo. 351; Davidson v. Transit Co., 212 Mo. 352; Roscoe v. Ry. Co., 202 Mo. 576. (3) The court erred in refusing to give instruction lettered J asked by appellants.

Henry S. Conrad, T. E. Durham and Hale Houts for respondent.

(1) Plaintiff was entitled to recover. Montague v. Ry. Co., 264 S.W. 815. (a) It is said that there was no evidence tending to prove that the car in question was being operated "at an excessive, dangerous or unusual rate of speed." It is contended that the testimony of witness Shepard, to the effect that the car in question, at the time in question, was traveling at a rate of forty miles an hour as against the customary speed of twelve, is to be disregarded, for the reason that he is shown not to have been qualified. The testimony of the witness shows that he was unusually conversant as to the question of speed. However, it is a rule in this state that a witness need have no qualification in order to state an opinion as to speed. State ex rel. v. Trimble, 250 S.W. 381; Stotler v. Railroad, 100 Mo. 128; State v. Watson, 216 Mo. 420; Moon v. Transit Co., 237 Mo. 431. Mrs. Atterberry's testimony was none-the-less competent by reason of the fact that it was not estimated in miles. State ex rel. v. Trimble, supra; Anderson v. Wells, 261 S.W. 954. (b) It is next urged that there was shown no causal connection between excessive speed and the accident. There was therefore evidence of a variation in speed as between the proper speed and speed shown of 28 miles an hour. Counsel assert that it does not appear that the accident would not have occurred even had the car been operated at the customary speed. An analysis of the testimony shows this contention to be unsound. Had the customary speed been observed plaintiff would have reached a place of safety by a very wide margin. There is no merit in the contention that the evidence failed to show proximate cause. Mason v. United Rys., 246 S.W. 23. (c) It is next insisted that plaintiff, as a matter of law, was chargeable with negligence barring his recovery. It is said that although he saw the northbound car coming he plunged from behind the southbound car as it passed the northbound car. It is clear from plaintiff's testimony that he did not jump from behind the southbound car into the northbound car, but that he waited for the southbound car to pass and then flagged the northbound car; that at this time the northbound car was a half block away from him. From his observation of the car at that point he took it to be "going the way cars go all the time." Not until then did he start across the track. He denied that he jumped and stated that he thought he had time to get across. The case is clearly within the class of cases wherein it is recognized that a traveler or pedestrian may rely upon the observance of a rate or speed or mode of operation fixed either by law or custom, and that where he exercises ordinary care in so relying, he is entitled to recover where the legal or customary speed or mode of operation is not observed, and that non-observance causes him injury. Harrington v. Dunham, 273 Mo. 414; Mason v. United Rys., 246 S.W. 318; Strauchon v. Ry. Co., 232 Mo. 587. (d) Upon the foregoing authorities we believe it clear that the question of plaintiff's right to rely upon the observance of the customary speed and the question of whether he exercised ordinary care in his own behalf were for the jury. Moreover, having submitted the questions by their instructions numbered K, L, O, and others, appellants are estopped to assert that it was not a question for the jury. Torrence v. Pryor, 210 S.W. 432; State ex rel. v. Allen, 272 S.W. 925. (2) Plaintiff's Instruction 1 submitted the theory charged in the petition and upon evidence which authorized the submission of the case to the jury. In respect to the insistence that the evidence was insufficient to authorize a submission of the reliance by plaintiff upon the observance of the customary speed of about twelve miles is completely answered by the observation that defendants by their instructions submitted to the jury the question of whether plaintiff had a right to believe that he could cross in front of the car. Torrence v. Pryor, 210 S.W. 432; State ex rel. v. Allen, 272 S.W. 925; Kinlen v. Railroad, 216 Mo. 167. (3) The mere reading of defendants' refused Instruction J is sufficient to convince that it was properly refused. It authorizes the jury to find for defendants if they should find certain acts and conduct on the part of plaintiff, without requiring them to find that plaintiff was negligent in the premises. Harrington v. Dunham, 273 Mo. 427. Moreover the subject-matter of the instruction insofar as may have been proper was covered by other instructions asked by defendants and given by the court. Turnbow v. Rys. Co., 277 Mo. 660.

White, J. Blair, C. J., and Ragland and Atwood, JJ., concur; Walker, J., dissents; Graves, J., absent; Gantt, J., not sitting.

OPINION

WHITE

In the Circuit Court of Jackson County Abram Dante recovered judgment for $ 20,000 against defendants, for injuries received by him on account of alleged negligence of defendants' employees in operating a street car in Kansas City. On suggestion in this court of the death of Abram Dante the action was revived in the name of his administratrix, Sarah Sugarwater.

Dante was injured at the corner of Holmes Street and Grauman Avenue in Kansas City. Holmes Street runs north and south and Grauman Avenue crosses it, running east and west. Two street car tracks on which the defendants operated cars ran on Holmes Street. On August 1, 1921, Dante intended to take the northbound car on Holmes Street, and approached from the west on the south side of Grauman Avenue. He reached the corner of Grauman and Holmes and sat down on the curb, to await a car which he expected from the south. He would have to cross over the near track and then the further track to be in position to board the car which he expected. While he was waiting a car approached from the north, passed on to the south, and the car Dante expected to board appeared coming from the south. He crossed over the west track, on to the east track, and was struck by the northbound car which he intended to take. He was rendered insensible for several days, one foot was amputated below the ankle and one leg below the knee. He suffered other injuries described.

The petition alleged as acts of negligence that the street car was running at an excessive rate of speed; that defendants' employees in charge of the car, just prior to the accident and at the time, failed to keep a vigilant watch ahead for the plaintiff and other pedestrians who might be moving towards the track; that in disregard of plaintiff's safety they failed to stop or to slacken the speed of the car, when by the exercise of ordinary care they could have stopped or slackened the speed so as to have avoided striking the plaintiff; that it was customary and usual, at the time and place plaintiff was injured, for the employees of the defendant operating cars to run them at a speed of about twelve miles an hour, and that such fact was known to the plaintiff, and when he signalled defendants' motorman and started across Holmes Street at the time and place mentioned, he relied upon the speed of the car being twelve miles an hour, and if...