ÆäÀÌÁö À̹ÌÁö
PDF
ePub

the car, by the exercise of ordinary care, could have seen plaintiff in time to have avoided the collision in connection with the context, charged that the inability of the motorman to avoid the collision was due to negligence in running the car at a high speed without observing the "slow" signal and without ringing the bell, and contributory negligence was therefore a complete defense, especially where the principal instruction, given at plaintiff's request, predicated his right to recover on a finding that he was exercising ordinary care to look out for the car and avoid injury therefrom.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 224; Dec. Dig. 110.] 3. EVIDENCE 588-WEIGHT AND SUFFICIENCY TESTIMONY CONTRARY TO PHYSICAL FACTS.

across the tracks. He had almost cleared the south track, when an east-bound car running thereon collided with the rear end of the wagon and threw him from his seat. The first cross-street west of Quincy avenue was about 300 feet distant, and was on the top of a hill. Plaintiff testified that immediately before starting to cross the tracks he looked back and observed that no car coming from that direction was in sight.

"I looked when I was pulling from the curb," he said, "and saw no car, and the horse must have been over to the first set of rails when I heard something, and I turned my head around that way. and the car was right on me, and I touched my whip a little bit, and the car came up, and it just caught the hind wheel-the end of the wagon. *** In my judgment, it was 35 or 40 feet when I saw the car."

In an action for injuries to a person struck by a street car, the court is not bound to accord probative value to testimony which cannot be true, and plaintiff cannot recover on his impossible assertion that the car was not in sight It had been raining, and plaintiff was at the time he looked, when it must have been seated under a wagon umbrella. He admits not only in plain sight, but in dangerous prox-he looked back only twice, and in the interimity. [Ed. Note. For other cases, see Evidence, val his horse, which was traveling at a Cent. Dig. § 2437; Dec. Dig. 588.] speed of about 4 miles per hour, did not 4. STREET RAILROADS 99-LIABILITY FOR traverse more than 35 or 40 feet. The car INJURIES-CONTRIBUTORY NEGLIGENCE. in that time, according to his testimony, It was the duty of a person about to drive must have covered a distance of about 275 across street car tracks to look for a car before feet; since, when he first looked, it had not driving into a zone of possible danger, and to stop in a place of safety if he saw one ap- reached the top of the hill, and when he proaching at a place and in a manner making looked again was only 35 or 40 feet away. dangerous an attempt to cross in front of it. It is conceded the car coasted down the hill, [Ed. Note.-For other cases, see Street Rail- and no witness who observed it testified that roads, Cent. Dig. §§ 209-216; Dec. Dig. its speed exceeded 15 miles per hour. The motorman, introduced as a witness by defendants, testified:

99.]

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Marcus L. Guffey against Ford F. Harvey and another, receivers of the Metropolitan Street Railway Company. From a judgment for plaintiff, defendants appeal. Reversed.

John H. Lucas and Lyons & Smith, all of Kansas City, for appellants. E. C. Hall and T. V. Conrad, both of Kansas City, for respóndent.

JOHNSON, J. Plaintiff was injured on a public street in Kansas City in a collision between an electric street car operated by defendants and a wagon in which he was driving, and sued to recover damages on the ground that his injury was caused by negligence of defendants in the operation of the car. The jury returned a verdict in his favor, and after their motions for a new trial and in arrest of judgment were overruled, defendants appealed.

[1] The injury occurred in the morning of July 12, 1913, at or near the intersection of July 12, 1913, at or near the intersection of Independence and Quincy avenues. Defendants operate a double-track street railway on Independence avenue, a public street which runs east and west and is 60 feet wide. Plaintiff drove eastward on the south side of the street, in a one-horse delivery wagon, until he reached Quincy avenue, when he turned northward, and proceeded to drive

That the speed of the car down the hill was about 8 miles per hour; that he observed plaintiff driving eastward along the middle of the pavement on the south side of the tracks; that suddenly and without warning plaintiff turned northward towards the tracks, when the car was only 20 or 25 feet away, and attempted to cross in front of the car; and that "as soon as I saw he was going to turn I applied my air on the emergency immediately. Before I stopped I run after I struck the wagon about 6 feet. I don't think I went over 6 feet after I struck the wagon."

A witness introduced by plaintiff who saw the accident stated:

*

"The man [plaintiff] was driving down the south side of the street, and I think he was hunting for No. 5000 [at the northeast corner of Independence and Quincy avenues], and at the same time was a car coming, and just as turned at right angles across the street; it dropped over the top of the hill this man it [the car] must have been a car length this side of the street (at the top of the hill), just dropped over the line; it might have been just then, but the car was about there when I noticed this man turn, * * at the extreme east line of Quincy. **Q. About how fast would you estimate that car was traveling coming down the hill from Brighton to Quincy? A. I couldn't say. Q. Was it going fast or slow? A. He didn't have any power on; no rower at the time. Q. About how far did the car run past after it hit the wagon, if you noticed? A. It didn't run past but just a little ways. It stopped almost instantly after it hit the wagon."

On cross-examination:

"Q. What did you see the man do there with reference to stopping the car? A. I think he

So.

*

done his best. The tracks were very slick that which defendants argue should have been morning, as we had a little rain; they were a given is whether or not the evidence most little damp. Q. It appeared to you there that he was exercising every effort to stop the car favorable to plaintiff will support a reasonwithout colliding with the wagon? A. I think able inference: First, that the motorman, in **Q. You don't know whether he the operation of the car, was guilty of one or [plaintiff] looked back before he started to turn more of the acts of negligence pleaded; and, or not? A. I don't remember. It seems to me he had an umbrella. One of these big umbrel- second, that plaintiff was free from neglilas like they use on delivery wagons. Q. You gence directly contributing to his injury. It didn't notice him at any time push the umbrel- may be conceded, for argument, the evidence la up to look back to see whether there was any of plaintiff tends to show that the motorman car coming or not? A. I don't remember. Q. At least he wasn't doing that when his horse approached the crossing at a dangerous rate started to cross over the south track? A. Not of speed, and negligently failed to ring the that I remember. Q. He didn't stop his horse bell as a warning to plaintiff that the car at any time while you saw him there, in mak-would proceed over the crossing without ing that swing around, until the wagon was struck by the car? A. I think not."

[2] The petition alleges:

stopping, but this concession does not aid plaintiff, whose own negligence is clearly and

"That at the time when plaintiff was cross-indisputably established by his evidence. ing said tracks, and while his horse and wagon Without any intimation of his purpose, he were entering thereon, the defendants' agents suddenly turned his horse from a course and servants in charge of said car could see running parallel with the track and at a him and said horse and wagon, or by the exercise of ordinary care could have seen him and safe distance therefrom, into one which took them, about to cross and crossing said tracks, him squarely across the tracks in front of in time to have avoided such collision, but that the approaching car, which was too close to defendants, their agents and servants, so negli-be stopped in time to avert a collision. His gently conducted themselves in the manage

ment of said car, and in permitting and causing own evidence, from which we have quoted, said car to be propelled at an excessive rate of shows that the motorman acted promptly speed, and in failing to slow down as required by the 'slow' signal erected at said street cross-upon the first disclosure of his purpose to ing, and in failing to ring the bell attached to leave a safe course for one of danger, but said car, or to give any other signal of its ap- was unable to stop the car in time to avoid proach to said crossing, that plaintiff's said the collision, though he almost succeeded in wagon was struck as aforesaid, and plaintiff doing so. The assertion of plaintiff that injured; that, as a direct result of such negligent acts and each of them, the plaintiff was just as he altered his course he looked back knocked off of said wagon as aforesaid," etc. and the car was not in sight is contradicted by his own eyewitness, who says it was in sight, and by the plain and indisputable physical facts, which conclusively proclaim that the car (which the evidence most favorable to plaintiff shows) was approaching at a speed less than four times that of the horse, and could not have been over 200 feet from the place of the collision at that time. plaintiff looked when he started to turn, he must have seen the car, and the fact is indisputable that either he did not look, or, looking, negligently took a dangerous and entirely unnecessary chance and drove into the zone of apparent, and, as it turned out, inevitable, danger.

As we understand this language, it does not embrace a charge of negligence under the humanitarian or last chance rule. The averment that the motorman "by the exercise of ordinary care could have seen plaintiff about to cross said tracks in time to have avoided such collision" appears by the context to mean that the inability of the motorman to avoid the collision was due to negligence in running at high speed, without observing the "slow" signal at that crossing, and without ringing the bell, and not to mean that, under the existing conditions, the motorman could have discovered the peril of plaintiff and avoided the injury if he had exercised reasonable care.

In legal substance, the petition is similar to the petition before us in Grout v. Railway, 125 Mo. App. 552, 102 S. W. 1026, and for the reasons therein stated we must hold that it presents only issues of negligence to which contributory negligence would be a complete defense. Indeed, this is the view of the nature of the pleaded cause of action expressed in the principal instruction given at the request of plaintiff which, as a predicate of his right to recover, required the jury to find that he "was exercising ordinary care to look out for said car and avoid injury therefrom."

With no issue of "last chance negligence" in the case, the remaining subject of inquiry presented by the demurrer to the evidence

[3, 4] We are not bound to accord probative value to testimony which could not be true, and plaintiff will not be allowed to recover upon his impossible assertion that the car was not in sight, when it must have been, not only in plain view, but in dangerous proximity to the crossing. It was his duty to look for a car before driving into the zone of possible danger, and to stop in a place of safety if he saw one approaching at a place and in a manner to make dangerous an attempt to cross in front of it. It is apparent he failed to discharge this duty, and that his own negligence directly contributed to his injury.

The demurrer to the evidence should have been sustained.

Judgment is reversed. All concur.

GINTER V. O'DONOGHUE. (No. 11501.) (Kansas City Court of Appeals. Missouri. Nov. 1, 1915.)

1. MUNICIPAL CORPORATIONS 706-NEGLIGENT USE OF STREETS-LIABILITY FOR INJURIES-CONTRIBUTORY NEGLIGENCE.

Where an action for injuries to a person struck by an automobile is not submitted specifically upon the theory of the humanitarian or last chance doctrine, negligence on her part contributing to the injury will defeat a recov

ery.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706.]

2. NEGLIGENCE 136-TRIAL-QUESTIONS OF LAW OR FACT.

In determining whether plaintiff's negligence appears indisputably as a matter of law, she must not only be given the benefit of all evidence favorable to her theory of the case, but also the benefit of every inference which the facts in evidence will reasonably bear.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. 136.] 3. MUNICIPAL CORPORATIONS 706-NEGLIGENT USE OF STREETS-ACTIONS FOR INJURIES-QUESTIONS FOR JURY.

Where injury is inflicted by a conveyance such as an automobile which may occupy one portion of the street at one time and some other portion at another time, and is not confined, as street cars are, to tracks, which of themselves suggest danger, the matter of plaintiff's contributory negligence is usually for the jury, and it is an exceptional case when a recovery can be denied as a matter of law for contributory negligence.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706.]

4. MUNICIPAL CORPORATIONS 706-NEGLIGENT USE OF STREETS-ACTIONS FOR INJU RIES-QUESTIONS FOR JURY.

In an action for injuries to a girl struck by an automobile while crossing the street diagonally, evidence held not to show conclusively that plaintiff did not look for approaching vehicles before starting to cross, or that she looked so carelessly as not to see what she

should have seen.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706.]

5. MUNICIPAL CORPORATIONS

706-NEGLIGENT USE OF STREETS--ACTIONS FOR INJURIES-QUESTIONS FOR JURY.

While the act of crossing the street at a place other than a crossing at a street intersection is a circumstance to be taken into consideration by the triers of the fact in determining whether a plaintiff is guilty of contributory negligence, it is not negligence as a matter of law; the street not being so dangerous that no reasonably prudent person would attempt to cross it.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706.]

6. MUNICIPAL CORPORATIONS

[blocks in formation]

705-NEGLI

8. MUNICIPAL CORPORATIONS GENT USE OF STREETS BY AUTOMOBILES— DEGREE OF CARE REQUIRED.

Under Rev. St. 1909, § 8523, providing that persons operating automobiles on public streets or places much used for travel shall use the highest degree of care that a very careful person would use under like or similar circumstances to prevent injuries or death to persons on such streets, the measure of care required of the driver of a motor vehicle is to be determined according to all the circumstances attending and surrounding the particular place, and, to determine whether the requisite care was observed, the running of the car must be viewed in the light of the exigencies of the situation.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. 705.]

9. EVIDENCE 265- ADMISSIONS-CONCLUSIVENESS-EXTENT OF PERSONAL INJURIES.

Where plaintiff suing for injuries testified that defendant's automobile struck and injured her, the fact that she said at the time that she was not hurt, and later told defendant that she had no grievance against him, was not conclusive against her, but was no more than a circumstance to be considered by the jury.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. 265.]

Appeal from Circuit Court, County; Wm. H. Haynes, Judge. "Not to be officially published."

Buchanan

Action by Delilah M. Ginter, by David M. Ginter, her next friend, against Francis C. O'Donoghue. From an order granting a new trial after a verdict for defendant, defendant appeals. Affirmed.

Culver & Phillips, of St. Joseph, for appellant. Duvall & Boyd, of St. Joseph, for respondent.

TRIMBLE, J. Plaintiff sued for damages, alleging, in substance, that defendant, while 706-NEGLI- operating his automobile upon a public street, GENT USE OF STREETS-ACTIONS FOR INJU- much used for travel, in the city of St. JosRIES-QUESTIONS FOR JURY. eph, negligently struck and injured her. Plaintiff, before starting to cross a street diagonally in the middle of a block, looked both The charges of negligence, upon which the ways before leaving the curb and again after case was submitted, were that the defendpassing between two automobiles standing at ant ran his car "in a careless, negligent, and the curb, and saw no automobile approaching. reckless manner," and negligently ran his After walking about 15 or 20 steps, or about 33 feet, she was struck by an automobile car against plaintiff without giving any which gave no warning of its approach. Held, alarm or signal of his approach. The jury

found for defendant, and the court sustained arm and shoulder were bruised; that her plaintiff's motion for a new trial; whereupon right knee was also bruised; that she was defendant appealed.

No grounds were specified in the order granting a new trial, but it is practically conceded that the court erred in instructing the jury, in defendant's behalf, that the law required only the exercise of reasonable care on defendant's part; whereas, the statute (section 8523, R. S. Mo. 1909) imposes upon him “the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury."

Defendant's position, however, is that the evidence shows that in no event ought a verdict for plaintiff to be allowed to stand; and that therefore a new trial should not have been granted regardless of errors in the trial. Graney v. St. Louis, etc., R. Co., 157 Mo. 666, loc. cit. 680, 57 S. W. 276, 50 L. R. A. 153. We do not understand defendant as contending that there is no substantial evidence tending to show that defendant was negligent, or that plaintiff was struck and injured. If such is defendant's claim, we answer it now by saying that clearly there was. The specific ground upon which defendant insists that plaintiff could not recover in any event is that plaintiff was guilty of contributory negligence.

confined to her room and bed about five weeks; was dizzy and sick at her stomach when she would raise her head or try to get up; that, in attempting to walk or to put her left foot to the floor, her left hip and side would pain her; that she continued to suffer thus for about five weeks and, at times, has "dizzy spells" yet; that for a period of about four weeks she was unable to walk without difficulty and cannot now straighten her foot without great pain in her hip; that before she was injured her sleep was unbroken, but after that, for about five weeks, whenever she dozed off she would dream of automobiles and teams running into her, and cannot sleep very well yet. The injury occurred December 13, 1913. She was examined by Dr. Sampson on January 7th following, and he testified that he found her left leg a half inch longer than the other, due, in his opinion, to some inflammation that had taken place in the hip joint causing an effusion of fluid therein which pushed the head of the thigh bone partially out of the socket. The testimony of physicians was that, while her injuries were not permanent, her recovery would be slow.

[1, 2] As the case was not submitted spePlaintiff was a girl not quite 16 at the cifically upon the theory of the humanitarian time of the alleged injury. It occurred about or "last chance" doctrine, negligence on 9 o'clock at night on Felix street between plaintiff's part contributing to the injury will Seventh and Eighth streets, one of the much defeat her recovery. But the question which traveled thoroughfares in the city. This we have to settle is, not whether there is street has "white way" lamps and was "well evidence from which a jury could properly lighted," or "very light." Plaintiff, leading find contributory negligence, but whether her little five-year old sister by the hand, such fault on her part appears so indisputacame out of a store on the south side of Fe- bly that we can declare it as matter of law. lix street and went to the curbstone desir- And in passing on the question we must not ing to go diagonally across the street in a only give plaintiff the benefit of all the evinortheast direction to a fruit stand on the dence favorable to her theory of the case, north side of the street. According to plain- but also the benefit of every inference which tiff's evidence, when she reached the curb- the facts in evidence will reasonably bear. stone she looked both east and west and, not [3] It is also proper to remember that: seeing any automobile or vehicle coming, "The cause is, indeed, an exceptional one where plaintiff's right of recovery should be destepped out into the street between two nied as a matter of law for his contributory "dead" automobiles which were standing negligence, when it appears he was run upon close to the curb at that point. As she and injured in the highway by a conveyance emerged from between the two automo- which is not required to travel in a particular place, as street cars on the tracks, which, of biles and was about 6 feet from the curb course, of themselves suggest danger as always out in the street, she says she again looked present. In other words, in those cases where up and down the street, and, seeing no injury is inflicted by a conveyance which may occupy one portion of the street at one time automobile coming, she started with her and some other portion at another time and the little sister to walk slowly in a northeastern injured person is not forewarned as by the dandirection across the street to the fruit stand. ger incident to car tracks, the matter of plainAfter she had gone about 15 or 20 steps and tiff's contributory negligence is usually for the Jury." Bongner v. Ziegenhein, 165 Mo. App. was in the center of Felix street, defendant 228, loc. cit. 342, 147 S. W. 182, 186. in his automobile and going east approached [4] The evidence in the case does not show her from the rear and struck her, knocking that Felix street between Seventh and Eighth her down. She says no alarm was given by where the accident occurred was in such the automobile and that she did not see it a constant state of turmoil from the passing until the instant it struck her. She says she to and fro of automobiles as to make the was struck in the left arm, side, and back; mere attempt to cross negligence as a matthat she remembered nothing after being ter of law. Plaintiff testified that she looked struck until she found herself in a nearby both ways twice before she started across,

walking upon a public highway is not analogous to walking upon a railroad or a street car track, and is not therefore to be stamped as negligence per se. On the contrary, as said in Meyer v. Lewis, 43 Mo. App. 417, loc. cit. 418:

"In cases of this kind-collisions upon the highway, where both parties have a right to be both on the question of the negligence of the -there is generally a fair question for a jury, defendant and the contributory negligence of the plaintiff."

from the two standing automobiles, and saw other than on the crossings at the street no vehicle coming. Defendant claims that intersections is to be held negligent per se. the physical facts conclusively show that she We are not willing to so hold. It is well did not look, else she would have seen it. known that people frequently cross in the We do not so regard the evidence. The street middle of the block, and, while such act is a was slightly downgrade toward the east, the circumstance to be taken into consideration direction in which the automobile went. There by the triers of the fact in determining was evidence that the automobile was going whether a plaintiff is guilty of contributory 10 miles per hour. Plaintiff was walking negligence, yet it is not to be so declared as slowly leading her five-year old sister by the a matter of law. The place was a public hand. Now, because the witness Mrs. Edds, highway where both parties had a right to be. who was behind plaintiff and was in the act As hereinbefore noted, the street was not so of following plaintiff acress the 'street, says dangerous as that no reasonably prudent pershe saw the automobile at Seventh street son would attempt to cross it. As said in 79 feet away, and waited for it to pass, and Hodges v. Chambers, 171 Mo. App. 563, loc. another witness, Krecskay, saw it before it cit. 570, 154 S. W. 429, 432, it "could only reached Seventh, and still another witness, be said to have been dangerous where made Mrs. Haas, saw it after it passed Seventh so by the failure of the drivers of vehicles street, defendant argues that this conclusive- to exercise the care required of them by ly shows that the automobile was in sight law." This case also holds that the act of when plaintiff says she looked, and hence she did not look, or, looking, carelessly failed to see, for "to look was to see." But none of these witnesses state that they saw the automobile at or before the time plaintiff looked as she emerged from between the two standing automobiles. True, Mrs. Edds says at one place plaintiff was from three to six feet ahead of her, but later in another place she said she did not know how far ahead she And she nowhere gave plaintiff's location at the time she (Mrs. Edds) saw the [6] Nor can it be said that the mere failautomobile. She, however, says plaintiff stop-ure of plaintiff to continually look behind her ped and looked as she emerged from be- to see if any automobiles were coming was tween the automobiles, thus corroborating negligence per se. After looking for an autoplaintiff in this regard. So that it is not shown that the automobile was in sight and was seen by others at the time plaintiff looked. For aught that this testimony discloses, plaintiff may have looked prior to that time, and, at the time the witnesses saw the car, was on her way across the street with her back to it. Indeed, the inference from the evidence is that she was in this position. If sounded nor alarm of any kind given. the car was going 10 miles per hour (and it of the witnesses hereinbetore named who was downgrade), it was traveling at the rate saw the automobile and watched it bear of 14.66 feet a second; if plaintiff, in going down upon the girl in the street say they slow leading a five-year old child, was trav- heard no horn nor alarm of any kind. Mrs. eling 2 miles an hour (which is only one- Haas says that no alarm was given, and so third less than the walk of an ordinary does plaintiff. It will not do to say that, man), then she was traveling not quite 3 because there was no evidence of a greater feet per second. She walked "15 or 20 steps," speed than 10 miles per hour, therefore the after emerging from between the automobiles, autoist was not negligent in the operation of before she was struck, at least 335/10 feet, his car, because the city ordinance specifies according to the measurements on the plat a limit of 12 miles. That is merely an outoffered in evidence. In that time the auto-side limit beyond which the automobile canmobile could have whisked down upon her not go. But because the city specifies a limit from a point more than 67 feet beyond the nearest side of the crossing at Seventh street. [5] It cannot be said, therefore, that the evidence conclusively shows that plaintiff did not look before she started, or, if she looked, was clearly negligent in failing to see the car. If plaintiff exercised the care of an ordinarily prudent person by looking before she started across, then she is entitled to have a jury pass upon her case unless the

mobile and seeing none, she could then presume, in the short distance traveled, that, if a car did make its appearance, the driver thereof would not negligently fail to warn her.

[7, 8] As to whether there was negligence on the part of the defendant, the evidence was ample to the effect that no horn was

of 12 miles does not mean that an automobile driver can run his car, under any and all circumstances, at any rate of speed within that limit and yet be free of negligence. The measure of care required by the statute of the driver of a motor vehicle is to be determined according to the circumstances attending and surrounding the particular place. Section 8523, R. S. Mo. 1909; Bongner v. Zeigenhein, 165 Mo. App. 328, 147 S. W. 182.

« ÀÌÀü°è¼Ó »