Welland v. Metropolitan St. Ry. Co.

• Decision Date: 13 June 1910
• Parties: WELLAND v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

129 S.W. 441

144 Mo. App. 205

WELLAND v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 13, 1910.

1. TRIAL (§ 296)—ABSTRACTINSTRUCTION—CURE BY OTHER INSTRUCTIONS.

When in an action for injuries to a traveler struck by a street car his evidence showed ordinary negligence of the operators of the car and negligence under the humanitarian doctrine and the evidence of defendant showed that plaintiff was solely liable for the accident, a charge that the degree of care to be exercised by plaintiff and defendant was the same, that plaintiff must exercise ordinary care to avoid injury, and that defendant must exercise ordinary

care to avoid injuring plaintiff, was not objectionable as ignoring the issue of negligence under the humanitarian rule, where that rule was presented by other instructions, since the instruction objected to did not in itself direct a verdict, and merely announced a general proposition of law.

2. TRIAL (§ 272) — ISSUES—INSTRUCTIONS—RIGHT TO COMPLAIN.

One predicating his right to recover solely on the theory that he was not guilty of contributory negligence and thus eliminating the last-chance doctrine may not complain of an instruction ignoring the issue of negligence under the humanitarian rule.

3. APPEAL AND ERROR (§ 171)—THEORY OF CASE IN TRIAL COURT—EFFECT.

A party adopting a theory of the case in the trial court is bound thereby on appeal.

4. TRIAL (§ 191)—INSTRUCTIONS—ASSUMPTION OF FACTS.

Where, in an action for injuries to a traveler struck by a street car, the evidence was conflicting on the issues of negligence and contributory negligence, a charge that plaintiff must exercise ordinary care to avoid injury, that defendant must exercise ordinary care to avoid injuring plaintiff, that a person before driving on a street car track must use ordinary care to ascertain the approach of cars and avoid injury therefrom, and failure to do so directly contributing to an accident amounts to contributory negligence, was not objectionable as assuming the existence of controverted facts.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Henry W. Welland against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Botsford, Deatherage & Creason, for appellant. John H. Lucas and Frank G. Johnson, for respondent.

JOHNSON, J.

This is an action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The jury returned a verdict for defendant, and the cause is before us on the appeal of plaintiff.

The injury of which complaint is made occurred early in the morning of July 27, 1906, on Walnut street between Fifth street and Missouri avenue in Kansas City. A double track street railway line is operated by defendant along the middle of Walnut street, the course of which is north and south. The east track in used by north bound cars, and one of such cars inflicted the injury. The block between Fifth street and Missouri avenue is largely occupied by commission merchants. Plaintiff, a retail grocer, had been purchasing supplies that morning. He had backed his wagon—a one-horse light delivery wagon—to the curb on the east side of Walnut street in front of a commission house numbered 511. There was a row of wagons backed to the curb, and plaintiff's wagon was one of this row. The horses faced west and their heads were so close to the east car track that they had to turn them aside when a car passed. As a rule, cars were run slowly past the horses, but witnesses for plaintiff testify that, on the occasion under consideration, the car ran faster than usual. Plaintiff had finished loading and started forward across the track. His evidence is to the effect that just before starting he looked south and saw the car at Missouri avenue, 150 or 200 feet away, moving slowly. Plaintiff testified: "I got on the track when I saw the car coming. I was on the track with the front wheels of the wagon and the horse. The front wheels had gone out. I got on the first rail, and the horse was on the track, too. It was a small horse and a big load and a lazy horse, and I had to whip the horse. I couldn't get him along very well, and I couldn't back him because I had too big a load, and it was all done so quick I couldn't get off the track." The car struck the wagon on the front wheel with enough force to topple plaintiff off the seat into the fender of the car. Plaintiff states that, instead of running slowly, the motorman increased the speed of the car and bore down on him at higher speed than that usually maintained by cars while running in that block. Summarized, the evidence of plaintiff tends to show that the motorman negligently ran the car at a dangerous rate of speed, and, further, was negligent in not stopping after he saw or should have seen that plaintiff was in danger. The evidence of defendant tends to show that the car was being run slowly, and that plaintiff negligently drove out from the row of wagons and into danger when the car was so close that nothing could be done by the motorman to avoid the collision.

The petition pleads ordinary negligence and negligence under...