Vessels v. Metropolitan Street Railway Co.
| Citation | 108 S.W. 578,129 Mo.App. 708 |
| Parties | EARL E. VESSELS, by next friend, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Decision Date | 02 March 1908 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jackson L. Smith, Special Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas, F. G. Johnson and C. C. Madison for appellant.
(1) The court should have directed a verdict for defendant because under all the evidence plaintiff was not entitled to recover. Ashbrook v. Railway Co., 18 Mo.App. 290; Willmott v. Railway Co., 106 Mo. 535; Petty v Railroad, 179 Mo. 666; Lee v. Jones, 181 Mo 291; Sweeney v. Railway, 150 Mo. 386; Parks v. Railway, 178 Mo. 108. (2) Plaintiffs' instruction number 1 is erroneous in that it is predicated upon a state of facts not pleaded nor proved. Meiley v. Railroad, 107 Mo.App. 466; Marr v. Bunkler, 92 Mo.App. 651. (3) Plaintiff's fourth instruction is also erroneous. Payne v. Railroad, 129 Mo. 405; Payne v. Railroad, 136 Mo. 562; Willmott v. Railway, 106 Mo. 543; Spillane v. Railroad, 135 Mo. 414; Campbell v. Railroad, 175 Mo. 161. (4) Plaintiff's instruction number 6 is defective. Petty v. Railway, 179 Mo. 666; Campbell v. Railway, 175 Mo. 161; Marr v. Bunker, supra; Ashbrook v. Railway Co., supra; Wallack v. Transit Co., 123 Mo.App. 160; Ashbrook v. Railway Co., 18 Mo.App. 291; Hensler v. Stix, 113 Mo.App. 181; Payne v. Railroad, 129 Mo. 115.
W. O. Cardwell and G. M. Johnston for respondent.
(1) If the statement of defendant was true, that under all the evidence, plaintiff was not entitled to recover, then there is no necessity for the citation of authorities. But the facts proven disprove the statement of the brief. (2) Objection is made to plaintiff's first instruction because not based upon facts pleaded or proven, and the objection is based upon the use of the word "rapidly" in the petition. What is the testimony? (3) Objection is made to plaintiff's fourth instruction. But see Anderson v. Terminal Co., 161 Mo. 424; Stern v. St. Louis, 161 Mo. 147; Fry v. Transit Co., 111 Mo.App. 332. (4) The sixth instruction is claimed to be defective because there is no proof to support the hypothesis that the gripman might have averted the accident after he saw, or by reasonable diligence might have seen, plaintiff's peril. It needed no expert evidence to show that the car could have been stopped within fifty feet. Latson v. Transit Co., 192 Mo. 449; Wellmeyer v. Transit Co., 198 Mo. 527; Sweeney v. Railway, 150 Mo. 386; Parks v. Railway, 178 Mo. 108; Seymour v. Railway, 114 Mo. 266.
--Plaintiff was injured while riding as a passenger on a street car operated by defendant, and sues to recover the damages sustained on the ground that they were caused by the negligence of defendant. Verdict and judgment were for plaintiff and defendant appealed.
The first complaint of defendant relates to the refusal of the trial court to instruct the jury peremptorily to return a verdict in its favor. At about five o'clock in the afternoon of February 2, 1904, plaintiff (a minor) became a passenger on an east bound cable train operated by defendant on one of its lines of street railway in Kansas City. He boarded the gripcar at Ninth and Broadway streets, intending to ride to Main street, a distance of five blocks, and stood on the running-board. He states that the coach was crowded and the gripcar "pretty well filled" with passengers and gives this as the reason for not seating himself. Running at usual speed, the car approached a point where a coal wagon was backed to the sidewalk to unload. It stood cross-wise in the street between the track on which the train was coming and the curb and the horses had been turned to the west and stood at a right angle to the line of the wagon. This position threw the hub of the right forward wheel so close to the track that, when the car passed, the hub projected a few inches over the runningboard on which plaintiff stood. Plaintiff states he was standing with his face to the north, looking into the car, and the first he knew of the wagon was when the gripman warned him to "look out for the wagon." He immediately looked ahead, saw the wagon and attempted to step up to the floor of the car, but before he could complete the movement, the wagon hub struck his left ankle and injured him. Further, he states that when warned by the gripman, the wagon was some twenty-five feet ahead of the car and that the gripman made no effort to reduce speed. The gripman testified that as he approached the wagon he "slowed down" and told plaintiff to "step up off of the footboard that he was liable to get knocked off there;" that no attention was given to the warning and that plaintiff collided with the head of one of the horses, causing it to shift the position of the wagon tongue in a way to run the end thereof against the passing coach. Plaintiff was thrown to the street. The negligence averred in the petition is "that said car was being run carelessly and negligently at full speed by the said wagon at the said time, that the gripman saw, or by the exercise of due care could have seen said wagon standing in such close proximity to the tracks of said company and that immediately after the gripman spoke to this plaintiff as aforesaid, his left foot was struck by the hub of said wagon or some other part of the wagon and by reason of which he was knocked from the car and thrown upon the pavement with great force and violence," etc. The answer contains a general denial and a plea "that if plaintiff received any injuries at the time mentioned in said petition, the same were caused by plaintiff's own fault and negligence."
All of the witnesses for defendant state that some of the seats in the gripcar were not occupied and as plaintiff does not state positively to the contrary, we shall assume that he could have found a seat but, instead, chose to stand on the footboard for the short distance he had to go. It was not negligence per se for plaintiff with the knowledge and implied assent of the trainmen, to take a position on the car less safe than that of riding in a seat. Whether or not such conduct was negligent was a question of fact for the jury to decide. The only risks assumed by plaintiff were those incidental to the position he selected and not those which might result from the failure of defendant's servants to observe due care in the management of the car. Plaintiff forfeited none of his rights as a passenger and defendant owed him the duty of exercising the highest degree of care to avoid injuring him. Knowing that plaintiff was where he might receive an injury from the wagon, it was the duty of the gripman not only to warn him of the danger but, when he saw the warning was not being heeded with proper alacrity, to stop the car to avoid injuring him. From the evidence of plaintiff, it appears that the gripman had knowledge of the danger in sufficient time to stop the car; that plaintiff did not receive the warning in time to escape and that he acted for his own safety with all reasonable expedition. With these facts before him, the learned trial judge could not well do otherwise than to send to the jury as issues of fact the questions of the negligence of defendant and the contributory negligence of plaintiff. [Wellmeyer v. Transit Co., 198 Mo. 527, 95 S.W. 925; Sweeney v. Railway, 150 Mo. 385; Parks v. Railway, 178 Mo. 108; Seymour v. Railroad, 114 Mo. 266; Willmott v. Railway, 106 Mo....
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