153 Mo. App. 555 | Mo. Ct. App. | 1911
Plaintiff, the minor son of James Gordon, deceased, sued to recover damages for the death of his father which he alleges was caused by the negligence of defendant. At the time of his death Gordon was a widower and plaintiff was his only minor child. The cause is here on the appeal of defendant from a judgment of two thousand dollars recovered by plaintiff in the trial court.
Gordon was killed near the intersection of Twenty-fourth street and Grand avenue in Kansas City, shortly after eight o’clock in the evening of September 22, 1908, as he was crossing Girand avenue, a busy public thoroughfare. A north-bound electric car on defendant’s “Westport line” struck him and inflicted injuries from which he died. Grand avenue runs north and south, the numbered streets east and west. Twenty-fifth street is 761 feet south of Twenty-fourth street and between them, at a point 418 feet south of Twenty-fourth street, the course of Grand avenue deflects to the southwest and continues on a tangent in a southwardly direction. The street car tracks, two in number, make a curve at this point to conform with the course of the street.
Gordon and plaintiff lived in the basement of a building on the west side of Grand avenue, a short distance north of Twenty-fourth street. His daughter, her husband and her mother-in-law had been paying him a visit and had left his home accompanied by him for the purpose of boarding a north-bound street car. The party proceeded to cross Grand avenue to the northeast corner of that street and Twenty-fourth street which was a rogular stopping place for cars running north. The
An ordinance of the city pleaded and introduced in evidence prohibited street cars from running at a great
The answer is a general traverse and a plea of contributory negligence. The motorman of the car testified:
“On the evening of the 22d day of September, 1908, I was in the employ of the Metropolitan Street Railway Company as a motorman and was running and operating a Westport car. When I got to Hunter avenue and Main street I got off the car and went in a drug store to telephone to the car barn, and when I got there there was a young lady using the phone and I was delayed about five minutes. By this time there were some other cars close behind me. I went from Hunter avenue into Main street, and started north on Main street. I made the stop at Thirty-first street. After that I made no stop until I passed Twenty-fourth street. It was just about or a little after eight o’clock at night. The car was full of people who seemed to be like theatre people going to a theatre. The reason I made no stop was because no one wanted to get off, and the other cars were following so close behind. My car was running pretty fast and was coming down grade. I did not intend to stop my car to take up any passengers because I was behind time, and the other cars were following close behind me. After leaving Twenty-seventh street I was ringing my alarm bell with my foot to warn people of the approach of the car, and show people the car was not going to stop. I was running this way and looking directly in front of me, as I came around the curve at or near Twenty-fifth street; as I came around the*561 curve north of Twenty-fifth street. At this point, on Grand avenue the track is straight and runs due north from that point. The street was well lighted; just as I turned the curve north of Twenty-fifth street I saw the man who was struck with some other gentleman with him, I also saw at the same time some people standing on the corner on the north side of Twenty-fourth street and on the east side of Grand avenue. They crossed over the north-bound track just as I turned the curve. At that time the two men were some feet west of the track. These people on the east side of the street saw that my car was not going to stop and someone held up his hand or something as if to get me to stop, but I did not intend to make the stop and kept my foot on the alarm bell to notify them of that fact and rang it more violently and oftener than before. When I first saw these two men I was ringing this bell, they looked toward my car as if to stop, and I thought from their movements they were going to stop, I kept ringing my bell and made no effort to stop the car until I was in about a car length of these men when I reversed my power and turned on the air and applied the sand. It was too late, however, the young man jumped back and was not struck, the old man was hit by the handhold on the front end of the car and knocked down. The handhold of the car was badly bent by the blow. My car ran fully nearly do Twenty-third street before I •could stop it. After I saw this man was not going to stop I did everything I could to stop the car. I was sounding this bell all the time I was coming down from Twenty-fifth street and was in plain view, of these two men. I saw them plainly and they saw me. They looked that way and I thought they heard the gong I was ringing, when these people on the corner held up their hands for me to stop I rang the gong more violently than before. The fender did not hit the old man at all, but it was the handhold on the side of the car.*562 After I stopped my car I backed up to where the man was struck, just as some men were carrying him over to the sidewalk. When I first saw these men they were not going straight across the track, but they were going diagonally at a point north of Twenty-fourth street, and were hinder facing me. There was nothing in their actions or movements to indicate to me that they did not see my car, and I did not know that they were not going to stop until I was within a car length of them, after I saw they were not going to stop I did everything in my power to stop. The men were in plain view of me all the time and I saw and was looking at them all the time after turning in the curve north of Twenty-fifth street.”
At the close of plaintiff’s evidence and at the close of all the evidence the defendant asked the court to direct a verdict in its favor but these requests were refused and the cause was submitted to the jury on the sole issue of whether the peril of the deceased was caused by the negligent manner in which the car was operated or was caused wholly or in part by negligence of the deceased. The issue of negligence under the “last chance” doctrine was withdrawn from the jury in an instruction given at the request of defendant and, as later we shall show, was abandoned by plaintiff. The record discloses a novel situation respecting the submission of the cause to the jury. Plaintiff asked no instructions and did not object to those given at the request of the defendant which were numerous enough and which included the following:
“The court instructs the jury there is no evidence in this case that the defendant’s motorman running and operating the car which struck deceásed, could have stopped or checked the speed of his car, after deceased placed himself in a position of peril, in time to have avoided the collision and injury to deceased and hence the plaintiff cannot recover on that ground.”
The negligence of defendant in running the car over a busy street at the speed of an express train is too apparent and indisputable for argument and we shall waste no words on that subject. But we think that negligence, to the extent that it operated to entrap and
However, we shall remand the cause for the following reason: Though the issue of negligence under the humanitarian rule was abandoned by plaintiff at the last and is not now in the case, the evidence, we think, would have "justified the court in submitting the issue had it not been abandoned, and it is but just to plaintiff to give him an opportunity to have his case tried on its only tenable ground. Doubtless the court, in ruling on the demurrer to the evidence, indicated the view of the law of the case, expressed in the instructions afterward given, and though plaintiff was not driven to the acceptance of that view, it would be an unnecessarily harsh rule that would deprive him of a fair opportunity to be heard on the real merits of his case. The jury well might have believed from the evidence that an ordinarily careful and humane man in the position of the motorman would have realized the peril of the deceased in time to have avoided the injury by checking speed or sounding an alarm with the gong. Where a car is approaching a crossing at ordinary speed a motorman may be justified in assuming that a pedestrian coming towards the crossing will stop in a place of safety and, in such case, would be under no duty to act on the contrary supposition until something in the appearance of the pedestrian indicated that he was going into danger. But where, as here, the motorman is approaching a crossing at highly excessive speed with the purpose of running by a regular stopping place, where people are waiting for his car, he has no right, to indulge in any presumptions. Such conduct is extraordinary and calls for the exercise of extraordinary care to prevent it from becoming’an agency of danger to others. Seeing a straggling group of persons slowly crossing the street
The judgment is reversed and the cause remanded.