Williams v. Fleming

Citation267 S.W. 6
Decision Date16 June 1924
Docket NumberNo. I4932.,I4932.
PartiesWILLIAMS v. FLEMING et al.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Jackson County; Thad. B. Landon, Judge.

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

Charles N. Sadler and Mont T. Prewitt, both of Kansas City, for appellants.

Virgil Yates and Mosman, Rogers & Buzard, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, a widow, brought this action to recover damages arising from expenses made necessary, and loss of services caused by, the alleged negligence of defendants' motorman in running a street car over her minor son, cutting off his leg. There was a verdict and judgment for plaintiff in the sum of $4,000, from which defendants have appealed.

The petition alleged that plaintiff was the mother of the child, Dallas Williams, whose father was dead, and she was therefore entitled to the child's custody, control, and earnings; that defendants, as receivers, were operating a system of electric street railway cars in Kansas City, and particularly on Indiana avenue between Thirty-Third street and Linwood boulevard; that on June 20, 1921, when so operating a certain street car on said portion of Indiana avenue, they ran over and crushed said child's leg so that it had to be amputated between the hip and knee; that they "negligently and carelessly failed to sound a signal of warning of the approach of said street car," etc., and "negligently and carelessly failed to keep and maintain a reasonable and vigilant lookout," etc.; that, after the street car had struck and thrown the plaintiff's son upon the fender of said street car, they "negligently and carelessly failed to stop said street car in time thereafter to prevent the injuries, * * * although they could have so stopped said car by the exercise of ordinary care"; and that, "although they saw, or by the exercise of ordinary care might or could have seen, the plaintiff approaching a position of peril and danger and in a situation of peril, and that the plaintiff ('s son), because of his tender years, was oblivious to said peril and danger because of the approach of said street car, in time thereafter for the said agents, servants, and employés of the said defendants to have stopped said street car by the exercise of ordinary care, or to have slackened the speed thereof, or to have sounded a warning of the approach thereof, and to have thereby averted the said injury, * * * yet they negligently and carelessly so failed to do."

Indiana avenue lies north and south, and has electric street railway double tracks thereon, occupying the middle portion of the avenue, the east track being the one on which the north-bound cars ran. Thirty-Third street, running east and west, crosses Indiana avenue at right angles.

The son, a child three and one-half years old, was, on the afternoon of the above named date, run over by a north-bound street car on Indiana Avenue, whereby his left leg was crushed, necessitating its amputation about 4 inches above the knee.

There was evidence in plaintiff's behalf, given by persons on the street near the scene of the accident, which tended to show that the street car stopped at Thirty-Third street to discharge or take on passengers, and then started on its northward journey, moving slowly at the rate of from 5 to 8 miles an hour; that at a short distance north of the north line of Thirty-Third street the car struck the child, and it was caught on the fender and carried thereon for 50 or 80 feet, when it rolled off to one side, a wheel passing over its leg, and even then the car continued on to a point at least 70 and perhaps 200 feet from where the baby lay before it stopped, that being brought about by the frantic efforts of those on the street who saw the tragedy and realized the situation. There was evidence amply tending to show that from the time the street car left the north line of Thirty-Third street until just before or at the time the car stopped about 70 feet or more north of or beyond where the child was run over the motorman was not looking toward the front and keeping a lookout, but had his face turned to the east or right side of the car, apparently talking to a passenger standing near him, and that no warning signal or bell was rung. There was also evidence that a car going at 5 miles per hour could be stopped in 10 feet, at 8 miles in 15 feet, and that the child was on the track at a time when the car was far enough away to have afforded the motorman ample time to have stopped before striking the child had the motorman been looking.

It is contended that defendants' demurrer to the evidence should have been sustained because plaintiff was guilty of contributory negligence as a matter of law in allowing her child to be thus unattended upon the street. Plaintiff's home was on the west side of and fronted east on Bales avenue, which is the first street east of and parallel to Indiana avenue, said home, consequently, being on the side of Bales avenue next to Indiana avenue, with a vacant lot between plaintiff's home and said last named avenue. The home was 3314 Bales avenue. The child was allowed to play around in the yard with a brother and two sisters. Plaintiff was not in the habit of sending her said son to any place, and on this occasion she had not sent him anywhere, and did not know that he was out of the yard. Plaintiff and her daughter were carrying dirt in a tub from Indiana avenue to make some flower beds which were located next to the front porch of her house. When she last saw him before his injury, he was standing on the front porch, and this was seven minutes prior to the time he was run over. Plaintiff attempted to show that she did not permit him to run on the streets, but was prevented from doing so by defendants' objection. Under these circumstances we do not see how we would be justified in saying plaintiff was conclusively guilty of contributory negligence. O'Flaherty v. Union Ry. Co., 45 Mo. 70, 100 Am. Dec. 343; Albert v. St. Louis, etc., R. Co., 192 Mo. App. 665, 179 S. W. 955. We may observe here that the case was tried and submitted, not only upon the charges of "ordinary" negligence in failing to warn and failing to keep a lookout, but also upon the humanitarian theory embodied in the last specification of negligence hereinabove set forth. The defendants' demurrer was general, and, under the humanitarian theory, contributory negligence is not a defense. Ozezewzka v. Benton, etc., R. Co., 121 Mo. 201, 25 S. W. 911; Reynolds v. Kinyon (Mo. Sup.) 222 S. W. 476, 482. The case of Degnan V. Doty (Mo. Sup.) 246 S. W. 922, 925, relied on by defendants, has no application whatever to this case, for in the case cited plaintiff knowingly exposed the child that was injured to the hazard of the tree falling on her.

In addition to witnesses on the street who testified that, before and up to the time the child was struck, the motorman had his face toward the east, apparently talking to a tall man at his side, plaintiff placed on the stand Gardner, a passenger seated in the rear of the car. He testified that the car stopped at Thirty-Third street, and after it left Thirty-Third street and before it again came to a stop he looked toward the front end of the car and saw a tall man standing near the motorman. He was asked what the motorman was doing at that time, and he answered that "he appeared as if he was in conversation with the man that stood at his right." An objection to this was made by defendants, and the court sustained the objection, and struck the answer out. The witness was then asked whether there was a man standing near the motorman at that time, and he answered that there was, and he was a tall man. He was then asked which way the motorman's face was turned at the time he (the witness) looked up and saw the tall man standing by him, and the witness answered, "Toward the east." This was likewise objected to, and the court sustained the objection and struck the answer out. Witness was then asked when was it with reference to the time the car left Thirty-Third street that he looked up and saw the motorman, and the witness answered that he could not give the exact time, "but it was very close to the time that the—perhaps an instant or two before the car stopped."

This was also stricken out by the court. Witness testified that, up to the time the car stopped, nothing had attracted his attention to the fact that something had occurred, nothing was said by anybody that attracted his attention, and the first he knew that something had happened was when the car came to a stop; that after the car left Thirty-Third street and before it stopped he heard no bell.

On cross-examination defendants elicited from the witness that it was when the car got to Thirty-Third street or "soon after that that I looked to the front of the car and saw this man. Q. Saw this man? A. Saw this man talking." Defendants further elicited the testimony that witness did not know an accident had occurred until the car stopped. And defendants sought to have the witness say it was after the car stopped that he saw the man up in the front vestibule, but the witness persisted in saying that it was before the car stopped; he could not "say as to the exact time, but it was shortly previous." The point now raised is that the witness did not notice the motorman with his face turned to the east until just before the car stopped (which of course was after the child had been struck), and, therefore, by this time the motorman would naturally be looking around, and hence it was error for the court to permit testimony that the motorman was looking east at the time this witness was referring to. There are at least two answers to this contention: (1) The court at the instance of defendants struck out all...

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