Wagner v. Metropolitan Street Railway Company
| Decision Date | 04 December 1911 |
| Parties | LEWIS WAGNER, an infant, by his Guardian, JACOB, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Herman Brumback, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Piatt & Marks for appellant.
(1) There is no evidence that the car could have been stopped with due regard to the safety of the passengers after plaintiff entered the danger zone and defendant's demurrers to the evidence should have been sustained. Gabriel v. Railroad, 130 Mo.App. 656; McKenna v Railroad, 54 Mo.App. 161; White v. Railroad, 202 Mo. 555; Cytron v. Transit Co., 205 Mo. 716; Bunyan v. Railroad, 127 Mo. 18; Williams v Railroad, 114 Mo.App. 8. (a) The court erred in submitting improper and illegal hypothetical questions to alleged experts as to the distance in which the car should have been stopped, due regard not being had to the safety of the passengers. McKenna v. Railroad, 54 Mo.App. 161; White v. Railroad, 202 Mo. 555; Cytron v. Transit Co., 205 Mo. 716; Bunyan v. Railroad, 127 Mo. 18. (b) In permitting said experts to testify as to what the usual speed of a car would be at the place of the accident. Williams v. Railroad, 114 Mo.App. 8. (2) It was error for the court, over defendant's objection, to permit counsel for plaintiff to misstate and misquote the evidence in his examination of the witness. Stetzler v. Railroad, 210 Mo. 704; Rose v. Kansas City, 125 Mo.App. 231; Neff v. Cameron, 213 Mo. 369; Haynes v. Trenton, 108 Mo. 133; Tuck v. Traction Co., 140 Mo.App. 355; Torreyson v. Railroad, 129 S.W. 409; Epstein v. Railroad, 197 Mo. 738. A five thousand dollar verdict for the three-year-old child was excessive.
Gage, Ladd & Small for respondent.
(1) There was no error in giving plaintiff's instructions Nos. 1 and 2, as they correctly declared the law. Murphy v. Railroad, 138 Mo.App. 436; McNamara v. Railroad, 133 Mo.App. 645; Childress v. Railroad, 141 Mo.App. 667; Cole v. Railroad, 121 Mo.App. 605; Edwards v. Railroad, 143 Mo.App. 371. (2) The fact that the feature of the safety of passengers was not specifically referred to in the evidence as to the distance within which the car could have been stopped, did not justify a demurrer to the evidence. The idea of safety to passengers was necessarily embraced in the questions and answers upon that subject. (3) The defendant cannot now, for the first time, claim that there was a failure of proof. He should have in some manner distinctly called the attention of the trial court to the point. (4) Even if the evidence introduced and the instructions asked by the plaintiff upon the question of ordinary care in bringing the car to a stop, did not specifically embrace the question of passengers' safety, the appellant cannot complain, because the evidence introduced and the instructions asked by it upon the same subject also omitted all reference to the question of the safety of passengers. Englehart-Davidson Co. v. Burrell, 66 Mo.App. 117; Fenwick v. Bowling, 50 Mo.App. 516; Shinnabarger v. Shelton, 41 Mo.App. 147; Spengler v. Kaufman, 43 Mo.App. 5. (5) The objection that the hypothetical questions to the experts, as to the time within which a car could be stopped, did not include the feature of the safety of passengers, cannot be heard in this court, because it was not made below. Orr v. Bradley, 126 Mo.App. 146: O'Neill v. Kansas City, 178 Mo. 91; Kinlen v. Railroad, 216 Mo. 145. (6) The evidence that the accident occurred in a populous neighborhood was properly admitted. (7) If the instructions for the plaintiff were faulty in not referring to the safety of passengers, as a matter to be considered in stopping a car, the defendant should have asked an instruction concerning the point. Brown v. Printing Co., 213 Mo. 611; Althoff v. Transit Co., 204 Mo. 166; Peck v. Traction Co., 131 Mo.App. 134; Long v. Nute, 123 Mo.App. 204. (8) Instruction No. 2 was not a comment on the evidence. Blacknell v. Hill, 76 Mo.App. 46; Feddeck v. St. Louis Car Co., 125 Mo.App. 24.
Defendant operates a double track electric street railway in Kansas City, Missouri, and on the 14th of March, 1908, one of its cars ran against plaintiff, knocked him down and ran over his arm, injuring it so that it was necessary to amputate it two or three inches below the elbow. He charged defendant with negligence and brought this action for damages. He recovered judgment in the trial court.
Plaintiff was a child between two and three years of age and in consequence no contributory negligence is to be attributed to him; and the sole inquiry, in respect to negligence, is whether defendant's motorman saw him in time to have stopped the car, or, if he did not see him in time, whether in the exercise of ordinary care, he could have seen him. The child left the curbing and entered upon the street in the direction of the railway tracks, crossed one of them and came into collision with the car on the other. There was much evidence as to the distance of the car from the child when the motorman saw him, or could have seen him, when he left the curb and started into the street. There was evidence in defendant's behalf that he was seen to leave the curb when the car was between forty and fifty feet away, and there was evidence in plaintiff's behalf fixing the distance at more than double that, and from inferences and the tacking together of bits of applicable testimony, plaintiff makes a fair showing from defendant's own evidence, that the boy could have been seen near eighty feet away from the car. Much evidence was heard as to distances and as to the time in which a car could be stopped when running, as this one was, at eight or ten miles per hour.
Plaintiff, as stated, being a child not three years old, will be considered as presenting such an appearance to the motorman, in the way of total lack of judgment, discretion and knowledge of danger, as to be a warning to the motorman to put his car under immediate control. [Simon v. Railway, 231 Mo. 65, 132 S.W. 250.] In this court a little boy as old again as this child (according to the defendant's evidence), was racing with the car for some distance and was about even with the front when he suddenly turned and attempted to run across the track in front and was run over, and we held it a question for the jury whether the motorman should not have put the car under immediate control when he saw the boy was running by the side at the front end. [Hedges v. Railway, 125 Mo.App. 583.]
From this, the important inquiry is whether, in view of the speed of the car, there was evidence tending to show that the motorman, in the exercise of ordinary care, could have seen plaintiff after he left the curb, in time to have stopped the car. We have examined it and find it abundantly supports the position that it could have been stopped. The demurrer was therefore properly overruled. [Kinlen v. Railway, 216 Mo. 145; Waddell v. Railway Co., 213 Mo. 8; Childress v. Railroad, 141 Mo.App. 667; Edwards v. Railway Co., 143 Mo.App. 371; Murphy v. Railway, 138 Mo.App. 436.]
Counsel for defendant argue with earnestness and ability than the court committed prejudicial error in allowing plaintiff to ask expert witnesses hypothetical questions relative to the distance in which the motorman could have stopped the car after he discovered, or should have discovered, the peril of the child, which omitted any reference to the duty the motorman owed his passengers not to operate the car in a way to injure them. The same objection is urged against the instructions given at the request of plaintiff which contain no special reference to the duty of the motorman towards his passengers but do include in the hypothesis on which a verdict for plaintiff is directed the declaration that the jury must believe from the evidence that the motorman had time, after he saw, or should have seen the child in danger to have averted the injury by the exercise of ordinary care.
There is a line of decisions in this State which enunciate the rule that the duty of an engineer of a railway locomotive, or of a motorman of a street car, towards a person in a dangerous position on or near the track in front of the moving engine or car, whether such duty be one imposed by rules of general negligence law or by the rules of what is known as the humanitarian doctrine, is subordinate to the duty the...
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