Sugarwater v. Fleming

Citation293 S.W. 111
Decision Date15 February 1927
Docket NumberNo. 25101.,25101.
PartiesSUGARWATER v. FLEMING et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Action by Abram Dante against Fred W. Fleming and another, receivers of the Kansas City Railways Company. Judgment for plaintiff, and defendants appeal. Pending the appeal, plaintiff died, and the action was revived in the name of Sarah Sugarwater, administratrix of his estate. Affirmed.

Charles N. Sadler and John R. Moberly, , both of Kansas City, and Roscoe P. Conkling, of fit. Joseph, for appellants.

Henry S. Conrad, L. E. Durham, and Hale Hauts, all of Kansas City, for respondent.

WHITE, J.

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 adainistratrix, 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 t Ike the north-bound car on Holmes street, and approached from the west on the south side of Grauman avenue. He reached the comer 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 north-bound 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 12 miles an hour, and that such fact: was known to the plaintiff; and when he signaled defendants' motorman and started across Holmes street, at the time and place mentioned, he relied upon the speed of the car being 12 miles an hour, and if the said car had been running at about 12 miles an hour he could have crossed the street in safety, but the car at the said time was running at a speed far in excess of 12 miles an hour and ran against plaintiff while he was in the exercise of ordinary care, before he was able to cross the street.

The answer, after a general denial, alleges that if the plaintiff received injuries at the time and place alleged in the petition it was because of his own negligence, and because of his failure to exercise ordinary care in starting across the street car track, when, by the exercise of ordinary care, he could have seen the street car approaching and should have known that he could not cross the street car track in safety. An ordinance of Kansas City was pleaded and introduced in evidence, limiting the speed of such cars to 12 miles an hour.

I. The main point presented for reversal and argued at length by appellant is that the evidence was insufficient to submit the case to the jury. A demurrer was offered at the close of the evidence, which was overruled.

Some incidents in connection with the injury are undisputed: That Dante sat on the curb and waited for a car from the south, and that he would be obliged to cross both tracks in order to board the car he expected; that he had a tow sack in his hand which he waved to the north-bound car as it approached; that he passed across the southbound track after the south-bound car had passed on, and he collided with the northbound car which he had expected to take.

The facts in dispute are: Where the southbound car passed the north-bound car; at what point did the north-bound car come in contact with the plaintiff as he attempted to cross; and when, with reference to the passing of the south-bound car, did Dante signal the north-bound car? It is the theory of the defendant that those two cars passed each other just a few feet south of the point of collision; that Dante waited for the southbound car to pass, rushed behind it as it passed, and onto the track in front of the other car which then struck him; that he waved his sack in signal to the north-bound car before the south-bound car passed.

The theory of the plaintiff is that Dante had risen to his feet, and after the southbound car had passed on he was crossing the street when he waved his tow sack to the north-bound car, which was at about the middle of the block to the south; that then he hurried across the tracks and had plenty of time to cross, if the north-bound car had been coming at something near its usual rate of speed; that Dante misjudged its speed, and for that reason did not get across before he was struck.

It was the theory of defendants that Dante ran into the side or corner of the approaching car. It is the theory of the plaintiff that he got onto the track and was struck by the front of the ear.

Manifestly, if the plaintiff's theory in each detail is supported by substantial evidence, the finding of the jury would be conclusive as to the several facts claimed.

Dante himself had been in this country many years, but had great difficulty in making himself understood and in understanding the questions which were asked him. His evidence is to be considered in the light of the poverty of his vocabulary in English, and his difficulty in understanding what was asked him. He described the situation thus:

"A. Yes; I want a car down town, but when I saw the car coming up I got up and then it passes me the car from town.

"Q. From the south? A. And then I just took my sack, and I go to pass the track, I want to come to town; in this time comes the car up the middle of the block, when I flagged them; I hold my hand up and I got a sack in it and I hold it up, and the car is coming pretty near a half a block and when they see you all the time the car will stop on Grauman avenue, and I go, I walk past when—that's all; I don't know how the accident came."

* * * * * *

"Q. Where was this car that you were going to get on when the car going south passed you? A. It was going past, and I got up, and when I am standing the car is going past me, and this car coming to town she leaves Twenty-Eighth street, and she was getting in the middle between in the middle of the block, and I hold my hand to stop the car, and I am going past the track."

He was examined and cross-examined at great length about the matters, and at times made conflicting statements which appear to show a misunderstanding of what was asked. The defendant offered in evidence, as a part of his cross-examination, his former deposition which conflicts with his statements.

Twenty-Eighth street is the first street South of Grauman avenue, and its distance from Grauman was agreed to be 400 feet.

One Mrs. M. B. Atteberry lived on the west side of Holmes street, at the corner of Grauman. Her house fronted Holmes. She was sitting on the front porch of her home when the injury occurred. She was almost opposite the point of collision; the witness in best position to observe how it occurred. She testified:

"Q. Mrs. Atteberry, tell the jury what you saw there of that accident? A. Well, the southbound car, he was sitting there watching for it to go by, and when he seen it go by he got up to go across while the other car was coming, going—was coming awful fast—very fast."

* * * * * *

"Q. Did you see him wave his sack? A. Yes, sir.

"Q. Where was the south-bound car at the time you saw him wave the sack? A. Well, the south-bound car had passed.

"Q. And did you see Mr. Dante then start to cross the street? A. Yes, sir.

"Q. When he started across the street, about how far back up in the block would you say the north-bound car was? A. Well, indeed, I couldn't tell you how far it was, it was coming so fast

* * * * * *

"Q. You don't know. Well, as a matter of fact, the north-bound car was obstructed from you by the south-bound car anyway, wasn't it? A. No, sir; the south-bound had passed.

"Q. Well, the south-bound car passed the north-bound car right there in front of your house? A. No.

"Q. Where did they pass? A. Well, the north-bound car was quite a ways up above—or the south-bound car quite a ways up above the north-bound car coming.

"Q. What part of the street car did Mr. Dante come in contact with when he got there? A. The front of it.

"Q. Did you see this car coming all the time —you saw this north-bound car coming all the time? A. I saw it coming.

"Q. Where was it when you first saw it? A. You mean

"Q. Did you see it as far south as Twenty-Eighth street? A. You mean the south-bound car?

"Q. No. I am talking about the north-bound car. A. The north-bound car, well, I would judge it was coming about one-third of the way from Twenty-Eighth.

"Q. It had covered one-third of the block from Twenty-Eighth to Grauman when you saw it? A. About two-thirds from Twenty-Eighth.

"Q. Two-thirds of the way from...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT