Taylor v. Metropolitan Street Railway Company
| Decision Date | 27 May 1912 |
| Citation | 148 S.W. 470,166 Mo.App. 131 |
| Parties | SAMUEL E. TAYLOR, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Piatt & Marks for appellant.
(a) Plaintiff's statement that seeing the approaching car he drove on the track, there sat, watched and waited for it to run up and hit him, at all times knowing he could avoid a collision, must reverse this case. Getty v. Transit Co., 103 Mo.App. 564; Hawkins v. Railroad, 135 Mo.App. 524; Guinney v. Railroad, 167 Mo. 595; Ries v. Transit Co., 179 Mo.1; McGarth v Transit Co., 197 Mo. 97; Moore v. Transit Co., 176 Mo. 528; Laun v. Railroad, 216 Mo. 563. (b) The statement of plaintiff's eye-witnesses that the car and truck both on the run came in view of each other only when they passed the corner building and neither stopped until the collision, must reverse this case. Markowitz v Railroad, 186 Mo. 350; Dean v. Transit Co., 192 Mo. 584; Kinlen v. Railroad, 216 Mo. 158; Holland v. Railroad, 210 Mo. 350; Schmidt v. Railroad, 191 Mo. 215; Gabriel v. Railroad, 130 Mo.App. 657; Hudson v. Railroad, 101 Mo. 13.
I. B. Kimbrell and F. W. Gifford for respondent.
Plaintiff was a fireman in the employ of the Kansas City fire department, and defendant is the operator of a street railway in that city. Plaintiff was injured by being struck by one of defendant's cars, and brought this action for damages. He recovered judgment in the circuit court.
Defendant's tracks run east and west on Eighteenth street and pass Agnes avenue, which runs north and south intersecting Eighteenth street. Each street is narrow, being about forty-five feet in width. It seems there is a "jog" of about forty feet where the avenue intersects with the street, and in order to continue on down the avenue you must make a turn into the street for the distance of forty feet to an entrance again into the avenue. A fire alarm was sounded, when plaintiff and a driver got upon the hook and ladder wagon which was about forty-five feet long, and started the horses rapidly down the avenue approaching Eighteenth street. On account of this "jog" in the streets, it became necessary to turn into Eighteenth street instead of crossing it at right angles, and then again into the avenue. To do this in the narrow streets with a fire wagon forty-five feet long, was a somewhat difficult performance, which the fireman call a maneuver in the shape of the letter "S." As plaintiff approached, he saw a butcher waving his white apron, as plaintiff supposed warning a car of the approach of a fire wagon. The wagon gong was sounded when plaintiff himself saw the car perhaps 180 feet away. The wagon was brought practically to a stand-still on the railway track, waiting for the car to stop so they could make the proper turn. The car was then one hundred feet away. Plaintiff's seat on the wagon was seven feet from the ground. A city ordinance pleaded by plaintiff gave fire wagons and apparatus paramount right of way over the streets in going to a fire, and also made it the duty of all street employees in charge of a street car to stop the car when any fire wagon approaches, until it has passed by. Plaintiff, though seeing the approaching car that distance away, supposed it would stop as by observance of the law car operators always had. He continued to think it would stop until it was close enough (15 or 20 feet) for him to realize it would not, when he called profanely to the motorman why he did not stop. It was then too late for him to save himself by jumping from the wagon. He said the only place he could have jumped would have been on the track in front of the car. The car struck the wagon at the front wheels, which threw him off and inflicted the injury of which he complains.
The first objection to the judgment, that plaintiff sat on the wagon seeing the car and "watched and waited for it to run up and hit him," is put much too strong for the facts as stated by the plaintiff. He did sit on the wagon and saw the car coming, but not to "hit him," for he all the time supposed it would stop, and when he saw no movement made to stop, he called to the motorman. It was then too late for him to jump from his high seat; he stated his only place to jump would have been on the track in front of the car.
The natural question follows, why did he suppose the car would stop? We think a good reason was shown. He, his fellow firemen and his great wagon of forty-five feet length, were in plain view, and it is common knowledge that fire wagons have paramount right of way, which every one concedes. When one is known to be approaching, footmen scurry to safety vehicles get to one side and street cars stop. But in this case an ordinance was pleaded and proved requiring street cars to stop; and it was shown in evidence that they customarily did stop. Defendant objects to the right to show a custom when it was not pleaded. Custom, like many other words, may vary in its meaning with the connection in which it is used. In this instance, proving that cars customarily stopped, or that it was their custom to stop, was merely proving their general observance of the ordinance and thus showing that plaintiff not only had a right to rely upon the ordinance and that it would be obeyed, but that it had actually always been obeyed. This was all proper enough to show that plaintiff did not invite defendant's servants to run over him and explains why plaintiff was upon the track. It tended to take out of the case defendant's insistence...
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