Zalotuchin v. Metropolitan St. Ry. Co.

• Decision Date: 02 December 1907
• Parties: ZALOTUCHIN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

106 S.W. 548

127 Mo. A. 577

ZALOTUCHIN v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

Rehearing Denied January 6, 1908.

1. STREET RAILROADS — CARE REQUIRED AT CROSSINGS.

It is the duty of a motorman on approaching a crossing where he has reason to anticipate the presence of vehicles and pedestrians to keep a close lookout and give warning of the presence of the car.

2. EVIDENCE — WEIGHT — TESTIMONY OPPOSING FACTS AND LAWS.

Testimony entirely inconsistent with physical facts and laws within the knowledge of common experience will be disregarded and treated as though it had not been spoken; hence, where it appeared that a street car could not have been more than 100 feet away when a driver proceeded

from a place of safety to the crossing where an accident occurred, his testimony that the rapid progress of the car raised such a cloud of dust as to obscure the headlight so that it could not be seen over a block away must be disregarded.

3. STREET RAILROADS — COLLISION WITH VEHICLE — PROXIMATE CAUSE — CONCURRING NEGLIGENCE OF ANOTHER.

If a motorman was negligent in not ringing the bell or making an effort to reduce speed after a collision became imminent, negligence of the driver of the vehicle in which plaintiff was riding would not relieve the railway company from liability, on the ground that the negligent acts of its servant were the remote cause of plaintiff's injury.

4. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — IMPUTED NEGLIGENCE — NEGLIGENCE OF DRIVER.

Where plaintiff, a girl not over 16 years of age, was sitting in the rear of a vehicle, which her stepfather was driving, his negligence in driving into a dangerous position could not be imputed to plaintiff, her status being that of a mere passenger.

5. SAME — QUESTIONS FOR JURY — CONTRIBUTORY NEGLIGENCE OF MINOR.

Where plaintiff, a girl not over 16 years old, was riding in a vehicle which her stepfather drove into a position of danger, whether she was negligent in not taking precautions to avoid the injury, held for the jury.

6. TRIAL — INSTRUCTIONS — NONDIRECTION.

Omission of plaintiff to ask, and of the court to give, instructions submitting the issue of negligence in a personal injury action, held mere nondirection, and not reversible error.

7. SAME — ISSUES NOT PLEADED.

In an action for negligence, refusal to give an instruction on contributory negligence is not error when that issue is not pleaded.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by Celia Zalotuchin against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas, Frank G. Johnson, and Ben F. White, for appellant. Fred A. Boxley and E. B. Silverman, for respondent.

JOHNSON, J.

Plaintiff alleges she was injured in a collision between a wagon in which she was riding and a street car operated by defendant, and that the injury was the direct result of defendant's negligence. She recovered judgment in the sum of $200, and the cause is here on the appeal of defendant.

At the time of the injury, which occurred on the 19th day of July, 1903, plaintiff was a minor. Her exact age is not disclosed, but, from facts appearing in the record, it is fair to assume she was not over 16 years old. The place of the injury was at the corner of Guinnotte and Michigan avenues in Kansas City. Defendant operated a doubletrack street railway along Guinnotte avenue, the course of which lies east and west. Eastbound cars ran over the south track, and west-bound cars over the other track. A brother of plaintiff's stepfather lived on the southwest corner of the intersection of the two avenues, and plaintiff accompanied her mother and stepfather on a visit to his family. They rode in a one-horse wagon, made the visit, and at about 10 o'clock in the evening started to return. When they seated themselves in the wagon, the horse faced north, with his head about five feet from the south rail of the south track. The mother and stepfather occupied the only seat, and the latter acted as driver. Plaintiff sat on a box placed behind the seat, with her face towards the rear of the wagon, and carried a lighted lantern. There were other occupants of the vehicle, but their number and description are not important. There were no street lamps on Guinnotte avenue, and, according to all the evidence, it was very dark. The stepfather testified that it was his purpose to go straight across the tracks, and just before he started the horse he looked up and down the street to see if a car were approaching. His view to the west was unobstructed for perhaps five or six blocks, and he saw no car. Plaintiff also testified that she looked to the west and saw none. The driver started the horse, and had driven him on to the south track, when, looking again to the west, he saw the headlight of a car which then was about a block away and approaching at a very rapid rate of speed. Plaintiff says she looked at the same time, saw the car, and called to the driver to hasten. He urged the horse, and increased its speed, but before the crossing could be accomplished, the car violently collided with the wagon, and the injury resulted. All of the witnesses introduced by plaintiff testified that the car was running at the highest possible rate of speed, and that the bell was not rung, nor was any warning given of its approach. They state further that the motorman made no effort prior to the collision to reduce speed. It is admitted that the car was provided with an electric headlight; but, in explanation of the failure of the occupants of the wagon to see it in time to avoid the collision, they say the car in its rapid progress raised a great cloud of dust which so obscured the light that it could not be seen until the car was not over a block away. On behalf of defendant, the evidence tends to show that the car was running at a rate of speed not to exceed 10 or 12 miles per hour; that the bell was being rung continuously; that owing to the darkness the motorman could not see the horse and wagon until they came into the narrow pathway of the headlight; that the wagon then was not over 30 feet away; that the motorman at once reversed the current in an effort to stop the car, and did materially reduce speed, but could not, in the space allotted, prevent the collision. The negligence charged in the petition is that the "agents and servants in charge thereof carelessly and negligently ran an electric car eastward along the south track of the defendant's said railway and across Michigan avenue aforesaid, without ringing the bell or sounding the gong of said car, and defendant, its agents and servants aforesaid, carelessly and negligently failed to look ahead and to observe plaintiff crossing...