Williams v. Metropolitan Street Railway Company

• Decision Date: 26 June 1905
• Citation: 89 S.W. 59,114 Mo.App. 1
• Parties: ROLLA WILLIAMS, by next friend, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

89 S.W. 59

114 Mo.App. 1

ROLLA WILLIAMS, by next friend, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 26, 1905

Appeal from Jackson Circuit Court.--Hon. John L. Peak, Special Judge.

AFFIRMED.

John H Lucas for appellant.

(1) The court erred in refusing to sustain the demurrer of the defendant, and refusing to give its peremptory instruction at the close of the case. Anderson v. Railway, 23 L. R A. 203; Chenery v. Railroad, 22 L. R. A. 575; Railroad v. Eicher, 67 N.E. 376; Griswold v Railroad, 14 Am. Neg. R. 78; Weldon v Railroad, 13 Am. & Eng. R. R. N. S. 762; Railroad v. Rack, 1st Street Railway Rep., 796; Tennenbrock v. Railroad, 59 Cal. 269; Railway v. Leach, 91 Ga. 419; Mason v. Railroad, 27 Kansas 83-9; Tully v. Railroad, 23 Am. & Eng. N. S. 212-13; Loring v. Railroad, 128 Mo. 359; Hyde v. Railroad, 110 Mo. 277; Feeback v. Railroad, 167 Mo. 215; Barker v. Railroad, 98 Mo. 50-5; Williams v. Railway, 96 Mo. 275-84; Rine v. Railroad, 88 Mo. 400; Maloy v. Railroad, 84 Mo. 270-6; Hallehan v. Railroad, 71 Mo. 113-18; Conner v. Railway, 74 S.W. 1002-7; Sharp v. Railway, 161 Mo. 235; Tanner v. Railway, 161 Mo. 497. (2) The court erred in giving instructions requested by the plaintiff, and refusing to give those asked by the defendant. Maher v. Railroad, 64 Mo. 276; Culbertson v. Railroad, 140 Mo. 59; Ruschenberg v. Railway, 161 Mo. 81; Heinzle v. Railroad, 81 S.W. 848; Senn v. Railway, 108 Mo. 151; See authorities cited in Subdivision I. Bank v. Murdock, 62 Mo. 73; Mallmann v. Harris, 65 Mo.App. l. c. 133; Carder v. Primm, 60 Mo.App. 427; Fitzgerald v. Hayward, 50 Mo. 523; Lesser v. Railroad, 85 Mo.App. 335.

W. H. Wallace, T. B. Wallace and W. C. Culbertson for respondent.

(1) The court did not err in submitting to the jury the question whether the defendant's servants by the use of ordinary care could have discovered the perilous situation of the plaintiff in time by the use of ordinary care to have stopped the train before the plaintiff was injured. This was a proper case for the application of the rule. Brown v. Railway, 50 Mo. 461; Isabel v. Railway, 60 Mo. 475; Frick v. Railroad, 75 Mo. 610; Werner v. Railroad, 81 Mo. 368; Scoville v. Railroad, 81 Mo. 434; Donohoe v. Railroad, 83 Mo. 542; Rine v. Railroad, 88 Mo. 400; Guenther v. Railroad, 95 Mo. 286; Durkman v. Railroad, 95 Mo. 244-246; Williams v. Railroad, 96 Mo. 281; Fielder v. Railroad, 107 Mo. 645; Lynch v. Railroad, 111 Mo. 601; Morgan v. Railroad, 159 Mo. 262; Note in L. R. A., Vol. 55, p. 449; Brooks v. Railroad, 35 Mo.App. 571; Hill v. Railway, 49 Mo.App. p. 533; 121 Mo. 478; Spencer v. Railroad, 91 Mo.App. 91. (2) The assertion of the appellant that there was no evidence or circumstance in the case showing within what distance the cars could be stopped, is without foundation.

OPINION

BROADDUS, P. J.

The plaintiff sues to recover damages for an injury received, alleged to have been the result of negligence upon the part of defendant. Plaintiff, fourteen years of age, was injured in Kansas City, Missouri, at about 9:15 p. m. on the twenty-sixth day of December, 1900, by being run upon by the cable cars of the defendant. He was an employee of a tin factory, had worked late and was returning home at the time mentioned. In company with an older brother and one, John Steele, he was proceeding east on defendant's track. Being in advance, he turned to address his companions when his foot was caught between two rails of a safety device placed in the track half way between the slot and the south rail. He made known to the other two boys his condition and they came up and endeavored to extricate his foot but were unable to do so. They then discovered a cable car as it started from the Union Depot station coming up the track on which plaintiff was fastened. So much of the facts are undisputed.

The plaintiff's evidence tends further to show that, Williams and Steele ran down about the distance of a block and met the car and called to the gripman to stop "as there was a boy fastened on the track." They began calling to the gripman to stop until they met the car and they then turned and ran along its side calling all the way to the gripman to stop as there was "a boy on the track;" and that the gripman saw them but made no effort to stop the car. Steele testified that there was a headlight on the car and that he could see plaintiff on the track when the car was a block away. When the car struck plaintiff he caught with his arms around the coupling and held on, his body passing under the car. He was dragged in this position about fifteen feet when the car was stopped. He was severely injured. The place where plaintiff was injured was on a steep incline.

The defendant's conductor testified that he was standing on the front of the car but did not see plaintiff until he was within fifteen feet of him. The gripman testified that he heard one of the boys make an outcry but that he could not tell what he said; but that he applied the brakes and got ready to stop and that he did all he could to stop. After the car struck the plaintiff it started back down the hill a short distance.

The defendant's evidence was to the effect that it was extremely dangerous to stop a car on the incline on account of its steepness. The defendant had apparently adopted every reasonable precaution for safety in the operation of its cars on said part of its tracks. In addition to the grip which held to the cable, the car was equipped with brakes and the defendant had provided a twisted or coiled wire rope running along between its tracks into which coils a hook might be dropped by the conductor in cases of emergency. This hook was attached to the body of the car by a strong cable and was always in the hands of the conductor, who stood on the front of the car going up and the rear going down the hill, to be dropped into the coiled wire rope should occasion arise. It was shown, however, that in any sudden effort to stop a car either going up or down the incline the grip was liable to let loose of the cable, the brakes to prove insufficient to hold the car and the hook to break as a result of the sudden strain. Under such condition, all control of the car would be lost by the operators and the force of gravity would be so great that almost certain disaster would result to passengers and employees. It was shown that persons were in the habit of walking over the tracks where plaintiff was injured both in going up and down the incline and that wagons passed over this part of defendant's right of way. And there was evidence that at different times the defendant's cars were stopped in safety on the incline. Evidence was produced pro and con as to whether the ground occupied by said track was the private property of defendant or a part of Ninth street.

The plaintiff recovered and defendant appealed.

The defendant insists that the court erred in not sustaining its demurrer to plaintiff's case on the close of his evidence, and also at the close of all the evidence. This contention is predicated upon the assumption that the place where plaintiff was injured was the private property of defendant, that he was therefore a trespasser and that the only duty it owed him was not to have injured him if it could have been avoided by proper care after the discovery of his peril. A long line of decisions not only of courts of this State, but also of other states, are cited to sustain its position. Among these are the following: Rine v. Railway, 88 Mo. 392; Yarnell v. Railway, 75 Mo. 575; Maher v. Railway, 64 Mo. 267; Zimmerman v. Railway, 71 Mo. 476; Feeback v. Railway, 167 Mo. 206; Barker v. Railway, 98 Mo. 50. In Rine v. Ry. Co., supra, the deceased was walking on defendant's depot switch track when he was killed. The court held that defendant was liable for negligence only after the discovery of the peril of deceased. In Yarnell v. Railway, 75 Mo., supra, the plaintiff's husband was killed while walking on defendant's track after dark in a country district. The court held that the defendant's employees had the right to assume that the track was clear, even though they knew it was used as a foot path, and defendant was liable only for such negligence on its part as occurred after the discovery of the peril of the deceased. In Feeback v. Railway, supra, it was shown that notwithstanding defendant's negligence, the defendant's engineer in charge of its train did not know of the perilous situation of the plaintiff and could not have discovered it by the exercise of proper care. Other cases cited enunciate a similar doctrine. Authorities from other states cited we will not notice as the question must be determined by the decisions of the courts of this State.

In the recent case of Morgan v. Railroad, 159 Mo. 262 VALLIANT, judge, rendering the opinion, applied the humanitarian doctrine to its fullest extent. There, the deceased was walking on defendant's track which had been used by pedestrians for many years. After stating the general rule that a person guilty of contributory negligence is not entitled to recover for an injury received at the hands of another, the court adopted the doctrine held in Kellny v. Railroad, 101 Mo. 67c, that, if defendant by the exercise of proper care could have discovered the perilous situation of plaintiff in time to have prevented the injury it was liable. In Barker v. Railroad, supra, the court held that deceased was killed at a place where the railroad owed him no duty. That he "was killed at a place where defendant's road was fenced and where there was nothing in the surroundings that would naturally or reasonably lead the servants in charge of the train to suspect that persons would be on the track. We have...