Weber v. Kansas City Cable Ry. Co.

• Decision Date: 27 January 1890
• Citation: 12 S.W. 804,100 Mo. 194
• Parties: WEBER v. KANSAS CITY CABLE RY. CO.
• Court: Missouri Supreme Court

12 S.W. 804

100 Mo. 194

WEBER v. KANSAS CITY CABLE RY. CO.

Supreme Court of Missouri.

January 27, 1890.

CABLE CARS — ACCIDENTS TO PASSENGERS — DEMURRER TO EVIDENCE.

1. In an action for injuries received in getting off a moving cable car, by a car passing on another track, evidence that the cars were running at a higher rate of speed than was authorized by city ordinances, coupled with some evidence that the bell on the passing car was not rung, is sufficient to show negligence of defendant.

2. A passenger on a grip-car pulled the rope for a stop at a crossing, but the signal, being out of order, gave no sound; and, while the car was in full motion, without signaling the conductor or gripman, who was near him, he stepped out of a side door, which was open and unguarded, and was struck immediately by a car passing on another track. Held, that he was guilty of contributory negligence.

3. Defendant, by putting in evidence, does not waive a demurrer to plaintiff's evidence, when renewed at the close, but only takes the chance of aiding plaintiff's case.

Appeal from circuit court, Clay county; J. M. SANDUSKY, Judge.

Johnson & Lucas, for appellant. Wash Adams, for respondent.

BLACK, J.

The plaintiff recovered a vervict for $13,200, and, on the suggestion of the trial court, remitted a part, and accepted a judgment for $10,000, to reverse which the defendant appealed. The defendant, at the close of the plaintiff's evidence, submitted a demurrer to the evidence, and asked a like instruction at the close of all of the evidence, both of which were refused. These instructions present the question whether the court should have taken the case from the jury. The facts disclosed by the plaintiff's evidence are, in substance, these: The defendant's road runs east and west through the City of Kansas. The cars run east on the south, and west on the north, track; and when the trains pass there is a space of not more than 18 inches between the cars. The cars going east stopped only at the east, and those going west at the west, sidewalk crossings; and then only when persons desired to get on or off. The plaintiff, a young man, about 20 years old, boarded an east-bound train, composed of a coach and grip-car, intending to go to Holmes street. He took a seat on the north side of the grip-car, near the rear end. Besides end doors, this car had two side doors at the rear end, — one opening out on the north, and the other on the south, side. These doors were open, and there was no gate or other contrivance to prevent persons from going out on the north side. Plaintiff testified that when he reached Holmes street he pulled a cord, which was attached to an air-whistle, twice; that he heard no signal, and the cars did not stop; that he was looking out of the side windows of the car, and then leaned over and looked out of the front end car-door, and did not see any train coming from the east on the north track; that he then got up, went to the rear end of the car, and then stepped out of the north door, and, just as he got upon the ground, a train going west, on the north track, hit him, and knocked him down. His legs were thrown under the wheels of the cars upon which he had been riding. The bones were broken, but amputation was not necessary. He is a cripple for life. He stepped off at or within a few feet of the east crossing. He says the train going west was so close to him when he got off that he could not see it. The whistle attached to the cord was in the grip-car, and was out of order, so that it gave no signal. The plaintiff's seat in the car was within six or eight feet of the gripman, and the plaintiff did not notify the conductor or gripman where he desired to leave the car. He had been in the habit of going back and forth, to and from his work, by way of the defendant's road, and was familiar with the running of the cars. There were 8 trains on the road, and each made 10 or 12 daily trips. These trains were running at the rate of a fraction over seven miles per hour, in violation of a city ordinance which limits the rate of speed to six miles per hour.

The evidence tends to show that it was the custom to ring the bells on both trains when and wherever they passed. The gripman of the train on which plaintiff took passage testified in positive terms that the bells on both trains were ringing at and before plaintiff stepped off; but the plaintiff testified, in answer to the question whether he heard any bells: "I don't remember of one on the car I was on. I never heard the bell on the approaching car." Another witness for the plaintiff, being asked if he was accustomed to hear signals, said: "Yes, sir. On that occasion I cannot say whether I noticed any." The defendant offered evidence to the effect that there were notices in the cars warning persons not to get off while the cars were in motion. The defendant offered other evidence; but, as it does not aid the plaintiff's case, it need not be recited.

The defendant, in running its trains at a rate of speed prohibited by ordinance, was guilty of negligence per se. Keim v. Transit Co., 90 Mo. 314, 2 S. W. Rep. 427. Besides that, there is some evidence, though it is very weak, to the effect that the gripman on the west-bound train did not, as was the custom, ring the bell of his car when passing the east-bound train, upon which plaintiff was a passenger. We shall assume, for all present purposes, that this bell was not rung. It is argued for the defendant that the speed of the train had no direct agency in causing the injury, but we cannot yield a consent to the proposition. There was sufficient evidence of negligence on the part of the defendant. The important question is whether the case should have been taken from the jury because of contributory negligence on the part of the plaintiff.

While carriers of passengers are held to a very high degree of care, there is a corresponding obligation on the part of the passenger to act with prudence; and, if his negligent act contributes to bringing about the injury, he cannot recover. Ordinarily, as has been said by this court on several occasions, contributory negligence is a question of fact, for the jury; but the power and the duty of the court to direct a verdict in proper cases cannot be questioned. As has been said, if it appears, without any conflict of evidence, from the plaintiff's own case, or from the cross-examination of his witnesses, that he was guilty of negligence proximately contributing to produce the...