Taylor v. Metropolitan St. Ry. Co.

• Decision Date: 17 February 1914
• Parties: TAYLOR v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

165 S.W. 327

256 Mo. 191

TAYLOR v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

Rehearing Denied March 24, 1914.

1. EVIDENCE (§ 506) — OPINION EVIDENCE — HYPOTHETICAL QUESTION — PROVINCE OF JURY — "WOULD."

A question to an expert whether the injuries described "might, could, or would" have resulted in the paralyzed condition of the person injured was not objectionable, as invading the province of the jury for including the word "would"; that word, as used, expressing what "might" be expected.

2. APPEAL AND ERROR (§ 1050) — HARMLESS ERROR — HYPOTHETICAL QUESTIONS.

In an action for personal injuries, a physician was asked whether, supposing that, after the injuries described, plaintiff was struck a blow over the eye which blacked his eye, but did not knock him down, etc., the subsequent condition in which the physician found plaintiff and his present condition "might, could, or would have been the result of that blow, or it might, could, or would have been the result of the injuries referred to," and answered that he did not think the blow had anything to do with the paralysis, because it existed before that time, and its extent, so far as the members of the body were concerned, was the same then as before, and did not seem to have changed any. The evidence showed that plaintiff was suffering with paralysis after he received the injuries and long before the blow over his eye. Held that, even if the question were improper as an attempt to have the expert state which of two causes actually produced plaintiff's condition, defendant was not injured thereby in view of the evidence and answer.

3. STREET RAILROADS (§ 118) — INJURIES — INSTRUCTIONS.

In an action for personal injuries from a collision with a street car, an instruction which authorized recovery under the humanitarian rule was not inconsistent with one authorizing recovery because of excessive speed, on the theory that the humanitarian rule is based upon "slow stopping"; that rule being grounded upon the failure to stop or slacken speed after learning of the peril.

4. STREET RAILROADS (§ 114) — INJURIES — ACTIONS — SUFFICIENCY OF EVIDENCE — DISCOVERY OF PERIL.

In an action for injuries in a collision between a wagon and a street car, evidence held to support a finding that, after defendant, by ordinary care, could have seen plaintiff's peril, the car could have been stopped in time to have prevented the collision, consistent with the safety of the passengers.

5. STREET RAILROADS (§ 117) — INJURIES — JURY QUESTION — NEGLIGENCE.

In an action for injuries in a collision between a wagon and a street car, evidence held to make it a jury question whether the car was being negligently operated at a high speed.

6. STREET RAILROADS (§ 117) — INJURIES — JURY QUESTION — PROXIMATE CAUSE.

In an action against a street car company for injuries in a collision between a wagon and a street car, evidence held to make it a jury question whether plaintiff's negligence was the proximate cause of his injury.

7. STREET RAILROADS (§ 103) — INJURIES — PROXIMATE CAUSE — HUMANITARIAN DOCTRINE.

To make plaintiff's negligence the proximate cause of his injuries, so as to prevent the operation of the humanitarian rule, he must have negligently entered the position of peril too late for defendant to prevent injuring him, by exercising the care required by the circumstances.

8. STREET RAILROADS (§ 103) — INJURIES — HUMANITARIAN DOCTRINE.

When one negligently moves from a place of safety to one of danger in front of a street car, under such circumstances that his danger cannot be reasonably apprehended by the motorman in time to prevent injuring him by ordinary care, the traveler's negligence is either the proximate cause of his injury or a concurrent cause with the motorman's negligence, in either of which cases the humanitarian rule is not applicable.

9. STREET RAILROADS (§ 117) — INJURIES — JURY QUESTION — CONTRIBUTORY NEGLIGENCE.

In an action for injuries from a collision between a street car and a wagon, whether plaintiff was guilty of contributory negligence in remaining in the wagon while attempting to cross the track, instead of jumping out, held a jury question.

10. STREET RAILROADS (§ 117) — CONTRIBUTORY NEGLIGENCE — JURY QUESTION.

While, if it appears from plaintiff's evidence that he is negligent, the court should take the question from the jury, though contributory negligence is not pleaded, in absence of a plea of contributory negligence, and of evidence for plaintiff justifying a finding, as a matter of law, that he was guilty of contributory negligence, that issue should not be submitted, though plaintiff's evidence tends to show contributory negligence.

11. TRIAL (§ 119) — ARGUMENTS — QUESTIONS NOT IN ISSUE.

Where, under the issues and instructions, the question of contributory negligence was not in issue, it was not error to forbid counsel to argue the question.

12. APPEAL AND ERROR (§ 301) — PRESENTATION BELOW — IMPROPER ARGUMENT.

Alleged improper statements by counsel in argument cannot be reviewed, where the motion for new trial does not assign error thereon.

13. APPEAL AND ERROR (§ 334) — PARTIES — DEATH — REVIVAL.

Rev. St. 1909, § 2077, provides that, if appellee die after the appeal was taken and before judgment, the administrators may be compelled to become parties in like manner as in the original suit, and section 5438 provides that actions for personal injuries shall not abate by the injured person's death, but shall survive to the personal representative. Held that, upon the death of plaintiff in a personal injury action after judgment had been entered and assigned by plaintiff to his attorney to secure the payment of his fee, the action was properly revived in the name of plaintiff's administratrix, and not in the name of the assignee of the judgment; the revival and subsequent proceedings not being an action upon the judgment, but more in the nature of a continuation of the original action.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by Jennie Taylor, administratrix of Albert P. Taylor, against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit to recover damages for personal injuries received by one Albert P. Taylor in a collision with one of defendant's cars while said Taylor was crossing Nineteenth street on Cherry street in Kansas City, Mo., about 8 p. m., September 20, 1907. Plaintiff recovered judgment in the trial court in the sum of $6,250, and the defendant perfected an appeal to the Kansas City Court of Appeals. After the appeal was taken, plaintiff died. The case was revived in the name of Jennie Taylor, as administratrix of his estate. In an opinion written by the Kansas City Court of Appeals, the judgment was affirmed; but, one of the judges of said Court of Appeals deeming its decision contrary to previous decisions of the Supreme Court, the cause was duly certified and transferred here. That portion of the plaintiff's petition charging negligence is as follows: "Defendant, through the negligence and unskillfulness of its officers, agents, servants, and employés in running, conducting, and managing a car of the defendant, which was being moved by the defendant at an unusual and rapid rate of speed along said track, while in charge of its said officers, agents, servants, and employés, negligently and carelessly ran the said car into, upon, and against the wagon in which plaintiff was riding, as aforesaid, with great force and violence. That the officers, agents, servants, and employés of the defendant in charge of said car, and who were then engaged in running, conducting, and managing said car, saw, or, by the exercise of ordinary care on their part, might have seen, said plaintiff, and become aware of the danger to which he was exposed while crossing said Nineteenth street, and while said wagon was on said track, crossing the same, in ample time to have stopped said car before it struck said wagon, as aforesaid, and thus have avoided injuring plaintiff, but that said officers, agents, servants, and employés of said defendant so in charge of said car negligently failed to stop said car, and negligently caused and permitted the same to strike said wagon as aforesaid, whereby plaintiff was violently knocked down and against said wagon and gig and out of said wagon to the street," etc.

The answer was a general denial. The evidence tended to establish the following facts:

Plaintiff, 33 years of age, in good health, at about 8 p. m., September 20, 1907, together with four companions, came out of a restaurant on the southeast corner of Nineteenth and Cherry streets in Kansas City, Mo., and got into a farm wagon which had been left standing on Cherry street a few feet south of Nineteenth street, and started to drive north on the east side of Cherry street across said Nineteenth street, intending to go to a certain freight depot where they were expecting to receive a shipment of race horses. The wagon was an ordinary farm wagon, with its bed and side boards 26 inches deep. On the front part of the wagon bed was a spring seat, upon which was seated Ollie King, the driver of the team, and George Wilson. Jim Allen was standing up in the wagon bed, just back of the spring seat. Back of Allen a driving cart was resting with its axle across the top of the wagon bed, and one-half of its wheels extended above the wagon bed. Back of the driving car, a man by the name of Jaggard, the owner of the team and wagon, was seated or standing, and just back of Jaggard, and near the rear end of the wagon bed, plaintiff was standing. On the southwest corner of this crossing, a two-story building stood flush with the sidewalk, and on the same corner, between the curb and sidewalk, was a gaslight. There was also a gaslight on the northeast corner of this crossing. Nineteenth street, at this place, was...