Torantolla v. Kansas City Rys. Co.

• Decision Date: 29 November 1920
• Docket Number: No. 13346.,13346.
• Citation: 226 S.W. 617
• Parties: TORANTOLLA v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

226 S.W. 617

TORANTOLLA v. KANSAS CITY RYS. CO.

No. 13346.

Kansas City Court of Appeals. Missouri.

November 29, 1920.

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

"Not to be officially published."

Action by Frank Torantolla against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard J. Higgins, of Kansas City, Kan., and Roscoe P. Conkling of Kansas City, Mo., for appellant.

Swearingen & Finnell, of Kansas City, Mo., for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000, and defendant has appealed.

The injury happened about 11 p. m. of June 6, 1917, at Ninth and Lister streets in Kansas City, Mo. Plaintiff at the time was engaged with others in sawing steel rails composing one of defendant's street car tracks, so that the rails might be taken out, and a Y, or switch, inserted. The street had been excavated deep enough between the rails to expose the rails and the ties and 16 inches on the outside of each of the outer rails. Plaintiff and one Geotona were engaged in sawing the north rail of the eastbound track. The work made it necessary for plaintiff to sit down between the rails of the track, the man at the other end of the saw sat in the pit on the north side of the rail, so that plaintiff faced north and Geotona south. There was a large pile of dirt on the south side of the track. The evidence shows that there were 15 red lights scattered along the work and 10 torches situated between the tracks in the center of the excavation. There was a city arc light at the intersection of Ninth and Lister a few feet west of the excavation.

Plaintiff was injured by being struck by an east-bound street car which approached at a rate of speed of 15 miles per hour without the gong being sounded or other warning being given. The car ran 32 feet after striking plaintiff, dragging plaintiff with it. Eight feet east of plaintiff two other men, Givens and Piscotto, were engaged in sawing the south rail on the same track. Geotona and Piscotto saw the car approaching when It was one-half of a block away, shouted a warning, left the excavation, and reached the side of the track just in time to prevent being struck. Givens, who also shouted when he jumped, was brushed by the car. It was necessary for the workmen to entirely clear the excavation, both between and outside of the rails, in order to keep from being struck by the car. When plaintiff stepped over into that part of the excavation between the rail and the north end of the pit, he reached back for the saw, it being defendant's instruction to take all tools out of the track before a car passed over. The saw had been removed by Geotona. The foreman of the gang with which plaintiff was working was not present. The motorman testified that he had been by the place of the accident four times that night, and that he saw no men working at those times, that he knew of the excavation, and that men worked there in the daytime, but he did not know that the men were working there at night. He thought that the lights were there to warn the public, who might use the street. Of course the jury could well say that the motorman would have seen men working at the excavation had he looked when he approached it. He admitted that he sounded no warning. He testified that he saw plaintiff in a position of peril 21 feet before he struck him, but was going at such a rate of speed that he could not stop. Plaintiff introduced in evidence defendant's printed rule, which provided that

"Great care will be exercised in passing over all excavations; workmen should be warned of the approach of car by sounding the gong repeatedly, and the car should be kept under full control."

The testimony shows that "full control" meant to have the car under such control that it could have stopped "immediately," "instantly," "right now." The case on behalf of plaintiff was submitted to the jury under an allegation of the petition, charging that defendant's motorman negligently approached the place where plaintiff was working without sounding the gong or bell upon the car, and without having the car under control.

Defendant contends that its demurrer to the evidence Should have been sustained for the reason that there was no negligence shown; that it was the duty of plaintiff not to be engrossed in his work to the extent of not looking out for his safety; he knowing that cars must pass; that he was warned by his fellow workmen when the car was a half of a block away, by the noise of the car running on steel rails, by the lights inside of and the headlight on the car; and that a warning by the motorman would have accomplished nothing. It is also urged that the car moving at the rate of speed that the evidence shows this one was, was not out of control, it being contended that "under control" means having the car under such control that the motorman could stop it in the distance he could see ahead of him; that the evidence fails to show that the motorman did not have...