Todd v. Kansas City Rys. Co.

• Decision Date: 20 February 1922
• Docket Number: No. 14285.,14285.
• Citation: 237 S.W. 868
• Parties: TODD v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

237 S.W. 868

TODD v. KANSAS CITY RYS. CO.

No. 14285.

Kansas City Court of Appeals. Missouri.

February 20, 1922.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Johanna Todd against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

Charles N. Sadler and Mont T. Prewitt, both of Kansas City, for appellant.

Atwood, Wickersham, Hill & Popham, of Kansas City, for respondent.

BLAND, J.

This is an action for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $6,000, but at the hearing upon defendant's motion for a new trial the court indicated that the verdict was excessive to the extent of $2,500, whereupon plaintiff remitted that sum from the judgment, leaving it standing at $3,500, and defendant has appealed.

The facts show that plaintiff was injured by being thrown from a wagon which was run into by one of defendant's street cars at Quindaro boulevard and Hiawatha street in Kansas City, Kan. Hiawatha street runs north and south and Quindaro boulevard east and west. Defendant maintained double tracks upon Quindaro boulevard, the north tracks being for cars operated westward and the south tracks for cars operated eastward. The collision occurred on June 20, 1918. Plaintiff, a woman 57 years of age, was riding on the front seat of a heavy two-horse wagon. The wagon was being drawn by a pair of old, gentle work horses, driven by plaintiff's granddaughter, a girl 16 years of age. The wagon and team were owned by plaintiff's son-in-law. Plaintiff's granddaughter was driving the wagon slowly toward the east on Quindaro boulevard with a heavy load of fruit and vegetables, which were" being taken to the city market in Kansas City, Mo. The wagon was an open one, there being no cover on it. The day was bright and clear. When the driver reached Hiawatha street she turned squarely around toward the north and proceeded slowly across the street car tracks on the west side of Quindaro boulevard. When she turned to go across the tracks she saw a street car coming from the east, and thereupon she brought her team to a stop with the horses upon the south or east-bound track. The street car stopped on the east side of Hiawatha street and discharged four or five passengers. The driver of the wagon, seeing the car stop, proceeded to cross the north or west-bound track, and when the heads of the horses were on said track the street car started up. Both plaintiff and her granddaughter saw the car approach the stopping place and start up and watched the car until it struck the wagon. They saw the motorman start the car and that he was looking down, and not in the direction in which the car was going. The granddaughter thereupon attempted to hurry the team across the track by using the lines, but they, being old horses, did not respond. The car came on and struck the right front wheel of the wagon, shoving it down the track a distance of 50 or 60 feet before the car stopped. Both occupants of the wagon were thrown from the wagon and rendered unconscious.

Plaintiff placed upon the stand a number of witnesses to testify that the motorman did not look. A passenger on the street car testified as follows:

"Q. I want you to tell what that motorman did as he went across Hiawatha and towards that wagon? A. He was attempting to shut the front door; the mechanism in front was a foot pedal, and that locks the front door. He was unable to get it shut. He started the car and immediately started to slam the door. I glanced up and saw he was trying to shut it; his attention was on that; and with one hand he had hold of the lever, and with his foot kicking at it like he was trying to get it to catch at this time."

This witness testified that he shouted to the motorman twice, but the latter apparently did not hear him; that the motorman did not take his attention off of the mechanism that was used to shut the front door, and that he did not look at any time before the collision in the direction in which he was going. The car continued to gain momentum until it struck the wagon. The driver was seated on the east side of the wagon, and plaintiff on the west. The impact was of sufficient violence to knock down one of the passengers in the car. Hiawatha street was 50 feet from the property lines and 30 feet from curb to curb.

Plaintiff testified that she saw the whole occurrence, saw the car approach the stopping place, saw it stop there; that it let off passengers; that it stopped near the east curb of Hiawatha street; that the team was going in a walk as they approached the street car tracks; that the motorman was looking down at the time he started the car and continued to so look until the collision. She testified that she weighed 200 pounds and made no effort to step off of the wagon. She saw her granddaughter attempt to hurry the team across the tracks by using the lines. She testified that she also "tried to hurry them on," but that they did not hurry. She testified that she had nothing to do with the driving of the team. She was asked:

"Q. You were not paying attention at all to how she run it, or was driving the team, at all? A. No."

She was then asked:

"Q. Were you paying attention to how she was driving it? A. I certainly knew how she drove it. I knew she had hesitated before the car stopped, and, when the car stopped, she drove straight across."

She further testified

"I don't know as I had any right to pay attention; she is capable of driving it."

The petition pleads that defendant's motorman—

"saw, or by the exercise of ordinary care upon his part could have seen, the wagon with its occupants approaching or upon the street car track in a position of imminent danger and peril, and unable to escape injury, in time * * * to have slackened the speed of said car."

The petition also pleads Kansas law by reference to decisions of that state. The answer consists of a general denial and also a plea of the laws of the state of Kansas in the same manner.

Defendant's first point is that its demurrer to the evidence should have been sustained. In view of this contention we have stated the facts in their most favorable light to plaintiff. It is insisted that plaintiff was guilty of contributory negligence as a matter of law, and that under the decisions of Kansas in reference to the last clear chance doctrine she is not entitled to recover. We are unable to see how either plaintiff or her granddaughter was guilty of negligence as a matter of law. They saw the car approaching, and the granddaughter stopped the team. When the car stopped she attempted to cross. Both plaintiff and her granddaughter had a right to rely upon the motorman keeping a lookout ahead for persons upon the intersection, and that he would not start the car and run into them while they were attempting to cross the track. Under the facts in this case we think there was no negligence as a matter of law on the part of either occupant of the wagon. Marple v. Railway Co., 85 Kan. 699, 701-704, 118 Pac. 690.

However, even though the occupants of the wagon were guilty of contributory negligence, plaintiff was entitled to recover under the Kansas doctrine of last clear chance rule. That doctrine is that, where plaintiff's negligence continues up to the very moment he is hurt, and where the exercise of reasonable diligence before that time would have warned him of his danger and enabled him to have escaped by his own efforts, then he is not entitled to recover unless the defendant actually saw him in a position of peril in time to have avoided the injury. Dyerson v. Railroad, 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207. However, where plaintiff's negligence ceases prior to the moment of his injury, and defendant by the exercise of ordinary care could have discovered the negligence of plaintiff after its occurrence and after it had ceased in time to have foreseen and avoided its consequences, then plaintiff is entitled to recover. Dyerson v. Railroad, supra, 74 Kan. loc. cit. 536, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207; Atherton v. Railway Co., 107 Kan. 6, 190 Pac. 430; McMahon v. Railway Co., 96 Kan. 271, 150 Pac. 566. In Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, a judgment against a street car company was affirmed upon the theory that after deceased had reached a position of danger from which he could not extricate himself—that is, after his negligence had ceased—defendant's employés were negligent in failing to discover his peril and to stop the car. Dyerson v. Railroad, supra, 74 Kan. loc. cit. 538, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207.

If the occupants of the wagon were at any time negligent, their negligence ceased when they got upon the track in front of defendant's car, for they were then in a position from which they could not extricate 'themselves, and the motorman could have seem them in a position of peril in ample time to have avoided the injury. In fact, if he had been looking as he was required to do, he would have seen them before he started his car. There is no question but that the last clear chance rule as it is construed in Kansas is applicable" to the facts in the case at bar, even though the motorman did not actually see the wagon and its occupants. McMahon v. Railroad, supra, 96 Kan. loc. cit. 273, 150 Pac. 566.

While the negligence of the driver of the wagon, if any, is not to be imputed to plaintiff (Corley v. Railway Co., 90 Nan. 70, 133 Pac. 555, Ann. Cas. 1915B, 764; Schaefer v. Interurban Ry. Co., 104 Kan. 394, 398, 179 Pac. 323; Williams v. Withington, 88 Nan. 809, 129 Pac. 1148; Denton v. Railroad, 90 Nan. 51, 133 Pac. 558, 47 L. R. A. [N. S.] 820, Ann. Cas. 1915B, 639; Burzio v. Railroad, 102 Kan. 287, 171 Pac. 351, L. R. A. 1918C, 997), yet plaintiff was charged with the duty of looking out for her own safety as far as practicable (Shaefer v....