Williams v. Kansas City Elevated Railway Company
| Decision Date | 28 June 1910 |
| Citation | 131 S.W. 115,149 Mo.App. 489 |
| Parties | EMIL F. WILLIAMS, Respondent, v. KANSAS CITY ELEVATED RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Ben T. Hardin for appellant.
H. G Latshaw and W. D. Summer for respondent.
This is an action for personal injury. The judgment in the trial court was for the plaintiff.
It appears that plaintiff was driving a large wagon drawn by two horses on one of the streets of Kansas City, Kansas, running east and west, and that defendant's street car line ran along one of the streets north and south. There were three acts of negligence charged in the petition. The two first were abandoned by plaintiff and the cause was submitted to the jury on the third. That was, in effect, a concession of plaintiff's negligence, but stated facts which bring the case under what is known as the humanitarian rule; that is to say, that defendant's motorman saw plaintiff in a position of peril in time to have avoided the collision by the exercise of ordinary care.
A collision and an injury to plaintiff by being knocked off his wagon, while on the crossing, was shown and is practically conceded.
The motorman testified that when he first saw plaintiff and his team he was approaching the track from the west, and that his car was then about fifty feet away. He then places plaintiff in such position and situation as to show him to be negligent. He stated that plaintiff had the lines lying over the dashboard of his wagon and that he was reading some meat orders which he held in his hand, and that his horses were trotting. He then stated his endeavor to stop his car by throwing off the electric power, putting on the brake and allowing sand to run on the track from the sand box; but that, notwithstanding this effort, the car ran into the wagon and plaintiff was knocked off.
There is a great deal of evidence preserved in the record, but since plaintiff's practical concession that he was himself guilty of negligence by submitting the case on the humanitarian rule, there is not much of it that need give us concern. The chief questions relate to whether the motorman was running his car at such negligent rate of speed, in view of the fact that he was approaching a street crossing in a city, as that it would disable him from stopping in time to avoid a collision with teams which might be passing over the tracks at such crossing; and though not guilty in that respect, whether he made such an effort to stop as would have avoided a collision even though he had been running at a proper rate of speed. The law is that in such place and situation, if a motorman or engineer drives his car at such speed that he could not stop it if he came in sight of one who might be crossing over the track, he cannot excuse himself by showing his inability to stop by the utmost effort after he did see him. The reason being that his being unable to stop came about from his inexcusable negligence before he saw him. That is, he willfully disabled himself. [Koenig v. Union Depot Ry. Co., 173 Mo. 698, 724, 73 S.W. 637; Klockenbrink Ry. Co., 172 Mo. 678, 689, 72 S.W 900; Moore v. St. Louis Transit Co., 194 Mo. 1, 92 S.W. 390; Eppstein v. Ry. Co., 197 Mo. 720; Murrell v. Ry. Co., 105 Mo.App. 88, 94; Abbott v. Ry. Co., 121 Mo.App. 582.] There was evidence which tended to show the car was running from eight to ten miles an hour and that the motorman had his head turned sideways, talking to some one standing by his side. There was also evidence tending to discredit the motorman, among other of that tendency may be mentioned that he stated plaintiff had dropped his lines over the dashboard and was reading, when in fact the wagon did not have a dashboard. We do not think it necessary to discuss the evidence in detail and will content ourselves with the statement that an examination of the record has satisfied us that a case was made for the...
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