Winn v. Metropolitan St. Ry. Co.

• Decision Date: 05 November 1906
• Citation: 121 Mo. App. 623,97 S.W. 547
• Parties: WINN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

97 S.W. 547

121 Mo. App. 623

WINN v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

Rehearing Denied November 19, 1906.

1. STREET RAILROADS—OPERATION—PERSONAL INJURIES—QUESTION FOR JURY.

In an action for personal injuries caused by a collision of a street car with a wagon in which plaintiff was riding, evidence held to present a question for the jury whether the gripman operating the car was negligent.

2. SAME.

Where one riding on a wagon along a street car track relied on hearing the gripman's bell, and did not look for an approaching car, it was a question for the jury whether he was negligent.

3. SAME—INJURY AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

A person riding on a wagon along a street railroad track, and injured by a collision with the street car, is entitled to recover therefor if the gripman on the car saw his danger in time to have averted a collision, or could have seen it had he looked, and failed to exercise ordinary care to avoid injuring him.

4. DAMAGES—EXCESSIVE DAMAGES—PERSONAL INJURIES.

An award of $2,000 damages for a permanent injury to plaintiff's knee, such that he cannot properly extend his leg, and that it pains him and will continue to do so in the future and is likely to grow worse, is not excessive.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by James Winn against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John H. Lucas and Ben T. Hardin, for appellant. Burnham & Brewster, for respondent.

BROADDUS, P. J.

On the 16th day of October, 1903, while riding in a wagon on Twelfth street in Kansas City, Mo., plaintiff was injured in a collision with a street car of defendant operated by a cable. This suit is for damages occasioned by said injury.

The petition alleges that the plaintiff was without fault on his part, but that defendant was negligent in not ringing its bell to warn him of the approaching car in time for him to have avoided the danger, and in failing to stop the car after it discovered his peril, or that, by the exercise of ordinary care, it might and would have seen the wagon on the track in time to have so avoided said collision by the exercise of such care. Plaintiff testified that he was riding in a furniture wagon loaded with stoves; that he was in the rear part of the wagon, between the rear end gate of the wagon and the stoves in front of him, the wagon being driven by one Curtis Martin; that both himself and Martin were in the employ of the Buchanan Furniture Company; that the stoves of the company were stored in a warehouse in the alley between McGee and Oak streets on the south side of Twelfth street; that the wagon had been driven by Martin to this warehouse and loaded to be taken to the storehouse of said company; that in coming out of the alley the wagon was driven north across the defendant's tracks, and then proceeded west across Grand avenue which is the next street west of McGee street; that after the wagon crossed Grand avenue it turned south upon the north track to avoid a defect in the street, at which time he saw a car on Twelfth street one block away coming from the east; that it was the custom of the defendant to stop its cars before it crossed Grand avenue, as there were intersecting tracks at that point, but he was not positive whether it did so or not on that occasion; that the wagon was then driven on for nearly half a block for the purpose of going into an alley that led to the place of destination; that about 20 feet before this alley was reached the collision occurred, at which time the driver "was making a turn with his team, just started to swing the team in off of the track," at which time he was steadying the stoves; and that when the wagon started to turn, he says he did not know "whether it stood still or kept moving" the car struck it, which had the effect of turning the stoves against and injuring him; that the occurrence was on a bright cool morning, and that he had no warning that the car was coming, that the car struck the rear end of the wagon, that the force was sufficient to break every stove in the wagon, and that the car at the time was going at the rate of about eight miles an hour. On cross-examination he testified that after first seeing the car a block east of him he did not look for it again, that the cable cars make a great noise in crossing the tracks on Grand avenue, that he said nothing to the driver about the approaching car, that he does not know whether he looked for it or not, that he could have heard the bell if it had been rung although the rattling stoves were making a noise, and that the noise made...