Sweeney v. Kansas City Cable Ry. Co.

• Decision Date: 23 May 1899
• Citation: 150 Mo. 385,51 S.W. 682
• Parties: SWEENEY v. KANSAS CITY CABLE RY. CO.
• Court: Missouri Supreme Court

51 S.W. 682

150 Mo. 385

SWEENEY v. KANSAS CITY CABLE RY. CO.

Supreme Court of Missouri, Division No. 2.

May 23, 1899.

STREET RAILROADS — INJURIES TO PASSENGERS — NEGLIGENCE — RIDING ON FOOTBOARD — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — TRIAL — WITNESSES — CONTRADICTION.

1. In an action against a street-railway company for the death of a passenger, caused by a collision between the car on which he was riding and a broken-down wagon on the track, there was evidence that the gripman was engaged in conversation with a passenger, and was not looking at the track ahead of him. Passengers on the train testified that they saw the wagon on the track when within 50 to 125 feet from it, and the driver of the wagon and another testified that the driver had gone up the track about 60 feet to warn the approaching car, but that the gripman paid no attention to him; the evidence being conflicting whether the car could have been stopped within 40 feet or in not less than 75 feet. Held, that the question of the gripman's negligence was for the jury.

2. A passenger on a cable car notified the gripman of his intention to get off at a crossing, and preparatory to doing so stepped on a footboard running alongside the car on which persons getting off the car were obliged to step. The motorman failed to stop at the crossing, and stated he would let the passenger off at the next crossing, and thereupon the passenger remained standing on the footboard, though there were empty seats in the car, and, before reaching the next street, he was killed by the car colliding with a wagon on the track. Held, that the passenger was not guilty of contributory negligence in remaining on the footboard while the car was going to the next crossing, the position not having been voluntarily assumed by him.

3. Nor was he guilty of contributory negligence in that he saw the obstruction which caused the injury on the track ahead of the car in time to have stepped back into his seat, and failed to do so, as he had a right to assume that he would be carried safely, and that the gripman would see the obstruction in time to prevent a collision.

4. A passenger confronted with sudden danger while on a car is not guilty of contributory negligence merely because he fails to exercise what might have seemed to others the best judgment in trying to avoid the danger.

5. In an action against a street-railway company for the death of a passenger from injuries received while riding on a running board used to step on in getting on and off the car, an instruction that if the passenger voluntarily left his seat in the car to ride on the running board, and that he would not have been injured had he not been standing thereon, and if the position on the running board was an unsafe one for passengers, no recovery can be had, is properly refused, since it prohibits a recovery notwithstanding the carrier's failure to exercise the greatest care to carry him safely, though he had voluntarily assumed an unsafe position.

6. In an action for the death of a passenger from injuries received while riding on a car, an instruction that if the passenger voluntarily left his seat, and took up the position in which he was injured, and that he would not have been injured had he remained in his seat, no recovery can be had unless the person in charge of the car saw him in his position of danger in time to have prevented the injury, is properly refused, as it assumes that the position which the passenger took was dangerous as a matter of law, and that no recovery could be had, though the injury was caused by the negligent management of the train.

7. A witness cannot be contradicted by proof that on a prior occasion he expressed an opinion at variance with the facts testified to by him.

8. In an action for the death of a street-car passenger from injuries caused by the car in which he was riding colliding with an obstruction on the track while the passenger was riding on the footboard of the car preparatory to getting off, the charge being negligence, in that the collision could have been avoided with ordinary care, an instruction that the carrier is liable if the injury was the result of even slight negligence in the management of the train, is not erroneous as enlarging the issues.

9. A street-railway company is bound to exercise towards its passengers the utmost care and diligence of a very cautious person, and an instruction that it will be liable if its servants are guilty of even slight negligence is proper.

10. In a negligence case the court need not, in its charge, define the word "negligence."

11. In an action for the death of a street-car passenger, caused by the car in which he was riding colliding with a wagon, an instruction using the term. "a broken-down wagon and obstruction which was at said time upon and in close proximity to the tracks," is not erroneous as assuming that there was a broken-down wagon the track, where the evidence shows that part of the wagon extended over one of the rails for a distance of one foot.

12. Nor is such an instruction erroneous where the carrier has requested an instruction assuming that there was an obstruction on the track, thereby conceding the fact.

13. In an action for the death of a passenger caused by the car in which he was riding colliding with an obstruction on the track, an instruction that the carrier is liable if its servants in charge of the car saw the obstruction in time to stop the car and avoid the danger, or could, by the exercise of the care required of them, have seen it in time to stop the car, followed by an instruction as to the degree of care required of a carrier, is not erroneous as requiring the carrier's servant to stop the car when he saw the obstruction, though too late to avoid the injury.

Appeal from circuit court, Pettis county; G. F. Longan, Judge.

Action by Annie Sweeney against the Kansas City Cable-Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Chas. E. Yeater, Karnes, Holmes & Krauthoff, and Frank Hagerman, for appellant. John Cashman and Rozzelle & Walsh, for respondent.

BURGESS, J.

This suit was begun by plaintiff in the circuit court of Jackson county against the defendant, a street-railway company, for damages in the sum of $5,000 for negligently killing her husband, Patrick Sweeney. Upon the application of plaintiff, the venue of the cause was changed to the circuit court of Pettis county, where a trial was had before a jury, resulting in a verdict in favor of plaintiff in the sum of $5,000, for which judgment was rendered in accordance therewith. After unsuccessful motion for a new trial, defendant appeals.

At the time of the accident defendant operated a double-track cable street railway upon Summit street in Kansas City, Mo. There was a space of 4½ feet between the two tracks. The train upon which deceased was riding as a passenger at the time of his injury was made up of an open gripcar and a closed coach coupled to it, each 22 or 23 feet long, and weighing about 6,500 pounds each. The train was operated by a grip, which was attached to a moving cable rope, and was manipulated by a gripman. The rope moved at nearly 12 miles per hour. Summit street runs north and south. South-bound cars run on the west track, and north-bound cars on the east track. At the place where the accident occurred the fall of the grade is about 10 feet in every 100. The accident occurred a few minutes after 6 o'clock on the evening of October 29, 1894, while the train was going south. To the front of the train was attached a headlight, which, according to the testimony adduced by plaintiff, on a dark night, without a fog, cast its rays from 100 to 130 feet in front, and, according to defendant's testimony, on a misty, foggy night cast its rays in front from 20 to 60 feet. At the time of the accident there were only 7 or 8 passengers in the coach, while its seating capacity was 24. Besides, there were vacant seats in the grip car. Sweeney desired to leave the car at Twentieth street, and when near that point so stated to the gripman, and stepped out upon the running board, upon which it was customary for passengers to ride to be in readiness to leave the car when it stopped. There were three persons on the board when Sweeney stepped out on it. It seems that the gripman, who was at the time engaged in conversation with a policeman, did not hear Sweeney, and carried him past his place of destination, and, when asked by a passenger why he did not let the old gentleman off at Twentieth street, replied, in effect, that he did not hear him, and that he would stop at Twenty-First street, which was the next street south. In the meantime Sweeney remained standing on the running board, so as to be ready to get off the car at the next street, being Twenty-First street. About this time a coal wagon had broken down on or close to the track of defendant at a point about 300 feet south of Twentieth street, the rear end of which extended over the east rail of the track upon which the car was proceeding southward. The testimony of several witnesses tended to show that the gripman could have seen the broken-down wagon on the track, or its close proximity thereto, from 50 to 120 feet; that the train was running at full speed, and that no effort was made to stop, until about the time of the collision. The driver of the coal wagon, Colton, and the negro woman Emma Pullman, to whom the coal was to be delivered with which the wagon was loaded, testified that Colton ran up the track 50 or 60 feet to warn the gripman, but that he paid no attention to it. The gripman, however, denied that he either saw or heard Colton when he was trying to attract his attention. The track was at the time what a witness called a "clean wet track." The evidence, as is usual in such circumstances, was conflicting with respect to the distance in which the train could have been stopped under the then existing...