Watts v. Fleming

• Decision Date: 27 June 1927
• Docket Number: No. 26027.,26027.
• Parties: WATTS v. FLEMING et al.
• Court: Missouri Court of Appeals

298 S.W. 107

WATTS v. FLEMING et al.

No. 26027.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Rehearing Denied July 11, 1927.

Certiorari Denied by Supreme Court September. 27, 1027.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Blanche Watts against Fred W. Fleming and another, receivers of the Kansas City Railways Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Chas. L. Carr, Louis R. Weiss, E. E. Ball, and Chas. N. Sadler, all of Kansas City, Mo., for appellants.

Wm. K. Ward, of Kansas City, Kan., and E. A. Scholer, of Kansas City, Mo., for respondent.

WILLIAMS, C.

This is a case in which the widow sues for the death of her husband. Trial was had and a verdict rendered for the plaintiff in the sum of $5,708.

The evidence discloses that Oliver Watts was the husband of the plaintiff; that on the 25th day of October, 1921, he was struck by an automobile which was traveling in a westerly direction across the public viaduct in Kansas City, Mo., known as the Twenty-Third street viaduct.

No point is made as to the pleadings nor the size of the verdict, and it is conceded that the deceased died from the injuries sustained by being struck by the automobile. The Twenty-Third street viaduct was being constructed at the time of the accident. This viaduct reached from Kansas City, Kan., across the Kaw river; thence eastwardly over a number of railroad tracks in Kansas City, Mo., to a point on Bluff street, Kansas City, Mo. On the south side of the viaduct from one end to the other was a sidewalk. North of the sidewalk was a space about 40 feet wide for other traffic than pedestrians.

On the north side of this road for vehicular traffic were to be the street car tracks. There was a lead off the viaduct on Wyoming street. This lead was not completed and in use at the time of the accident. There were no permanent lights at the time of the accident on the viaduct. There were a few red lanterns in the Wyoming street approach marking the location of materials and warning that the Wyoming street approach was not yet completed.

The defendants were operating street cars from the Kansas side to a point near this incomplete Wyoming street approach. Witness Burkwell testified that in the operation of the street railroad a car was run eastwardly to the obstruction caused by the building of the company tracks on the viaduct, and a car was run westwardly to the other side of the obstruction, or, in other words, the line was continuous except where the track was not completed. Witness further testified that the passengers walked from one car to the other. The car running eastwardly had a double trolley so it could be more easily run back over the same track. The distance between the ends of the two lines was 500 or 600 feet. Work was proceeding so as to connect the gap between the two lines. Transfers were given on the Kansas side. These transfers were good on the lines to the east of the incompleted piece of track, as well as other lines in Missouri.

On the evening of the accident, deceased worked later than usual and started home on the street car operated by the defendant. He made one transfer and reached the eastern end of defendant's line on the viaduct. Deceased was riding with one Hodges, who worked with him at Peet Bros. Soap Factory. At about 7 p. m. deceased and Hodges got off defendant's car at the eastern end of the line as above described, and were proceeding toward the east or the Missouri end of the viaduct, there to take the car of defendant to continue their journey. The night was dark and cloudy and rain and hail fell in the afternoon. There were no lights of any kind upon the viaduct or at the place where deceased was struck, except possibly some red lanterns. When deceased and his companion had proceeded 60 or 70 feet eastwardly in the space for vehicular traffic and 6 or 7 feet south of the space reserved for defendant's tracks, toward the car lines of defendant, an automobile traveling at a high rate of speed and without lights struck deceased. There was no obstruction between the place where deceased alighted and the sidewalk, but to reach the sidewalk it was necessary to cross the roadway or space used for vehicular traffic. There seems to have been no way for deceased to have reached the lines of defendant eastwardly, except by walking across the viaduct.

The driver of the automobile that struck deceased did not stop and his identity was never discovered. The approach leading to Twenty-Third street was not completed. Deceased did not go straight toward the sidewalk, but as stated by witness Hodges, his companion at the time of the accident:

"Well, we just got off and started on out. Of course the cars were passing. We started on out to get out of there, and before we could cross the street, why he was run into. We were partly across the roadway; were, after we got off the street car, partly across, and I don't know just how far we had gotten; we had not gotten very far."

The evidence shows that deceased had been using this route for some time.

The defendants insist that a demurrer should have been sustained, and place this contention on two grounds, to wit: First, that there was no negligence upon the part of defendants; second, that, even if there was negligence, it was not the proximate cause of the death of the deceased.

No Missouri cases are cited, nor have we been able to find anything in this state, directly covering the facts as detailed in evidence. In discussing the first proposition it is necessary to determine the status of the deceased with reference to being a passenger at the time of the accident. And In considering the demurrer we are required to disregard defendant's evidence unless it aids the plaintiff's case. Watson v. Carthage Marble & White Lime Co. (Mo. App.) 290 S. W. 649, loc. cit. 650.

In discussing the first point urged by the appellant, the case of Mary Creamer v. West End Street Ry. Co., 156 Mass. 320, 31 N. E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456, is largely relied upon. This case is approved by the Tennessee court in Chattanooga Electric Ry. Co. v. Buddy, 105 Tenn. 666, 58 S. W. 646, 51 L. R. A. 885, by the Nebraska court in Jacobson, Adm'r, v. Omaha & C. B. St. Ry. Co., 109 Neb. 356, 191 N. W. 327, 31 A. L. R. 563, by the Iowa Supreme Court in Morris v. Omaha & C. B. St. By. Co., 193 Iowa, 616, 187 N. W. 510, and by the Oregon court. This case seems to be well Considered and approved by the appellate courts of many states. We think that, while it embodies a principle that should have been submitted to the jury, it is not conclusive as the facts may be viewed from a different angle.

In deciding on the case of Mary Creamer v. West End Street Ry. Co., supra, the court said:

"He had ridden as a passenger upon another car, which he had left immediately before he was killed. When struck, he was walking across Warren street, having taken one or two steps from the place where he had touched the ground on leaving his car, and was between the rails of the track on which was the car by which he was struck. He had not reached or had time to reach the sidewalk of Warren street, but he had left the car on which he had been a passenger, and had begun his progress on foot across the street. We are of opinion that he was not a passenger when the accident occurred, and that he ceased to be a passenger when he alighted upon the street from his car. The street is in no sense a passenger station, for the safety of which a street...