125 Mo. App. 614 | Mo. Ct. App. | 1907
This action is for personal injury alleged to have resulted to plaintiff through negligence of defendant’s servants in not sounding the bell of one of its street cars whereby it ran against her. She recovered judgment.
The plaintiff was hurt while attempting to cross the railway tracks at Ninth and Jefferson streets in Kansas City. Ninth street upon which defendant’s tracks were laid runs east and west, while Jefferson street and Penn street run north and south and cross Ninth street. At Ninth and Jefferson where plaintiff was hurt, looking west there is a very steep incline coming up from the Missouri and Kaw river bottoms onto the bluff. The railway was operated on this incline by means of a cable and it was known as a cable railway. Jefferson street, at this point, is not fully at the top of the hill, but further on, up a steep grade, a distance of 250 feet is Penn street which, at this point, is the top of the hill. The crown of the hill at Penn street is no wider than the width of that street; and Ninth street and defendant’s tracks pitch down from there at a sharp
Plaintiff’s married son lived nearby and she had been visiting his family for several days and had become aware that the cars were passing both ways at short intervals night and day. She and her daughter-in-law were out looking for the latter’s little child. Plaintiff was looking on the south side of Ninth and a little west of Jefferson street when she came up onto Jefferson street and stood on the sidewalk at Ninth and the west side of Jefferson. Her daughter-in-law was across on the north side of Ninth street and noticing plaintiff on the south side, she went over to her and asked if she had seen anything of the child. She answered no. It seems then to have been in the mind of each that they would cross back to the north side of Ninth street, but just then they heard the clanging of a bell to the west and on looking they saw a car nearby, coming up the. incline on the south track next to them. The daughter-in-law crossed on over in front of the car, supposing plaintiff was following after her. But plaintiff stepped back to wait for the car to pass and then attempted to cross behind the car after it passed, but as she stepped upon the north track a west-bound car, descending from Penn street, struck her and inflicted the injuries for which she sues.
The evidence for the plaintiff discloses that under well-established rules of law, sbe is without right to recover. The case is made plain by her own testimony. Her view from where she stood at Jefferson street to the top of the hill at Penn street was entirely clear except
The' statement of counsel in plaintiff’s brief, is that plaintiff and her daughter-in-law (he uses the word “they”) looked both east and west when the daughter-in-law crossed ahead of the east-bound car. But the record does not bear out the statement. The record shows that the daughter-in-law testified that she looked both ways and crossed oyer. But plaintiff determined to wait until the car passed. It is then that she looked before starting across. She says her daughter-in-law 'crossed oyer in front of the east-bound car, “but I waited till she went across in front of that car, and I waited till the car got past, and then I looked up to see if there was a car, ... I looked up there for to see the cars coming, but I couldn’t see no car, only the car going up the hill, I didn’t see no car coming down, and I seen the car going up,” etc. Again she said, “I looked both ways you know, for to see the car coming, but I couldn’t see only the car going up the hill.” And so throughout her testimony, she plainly discloses that she looked east when she could see nothing but the car going up the hill which, of course, kept her from seeing the one coming down, until the one east-bound got far enough away, and then she manifestly did not look again, else she would not have been struck, unless we are to imagine that she stepped in front of the car purposely. In support of the general duty resting upon one about to cross, and while crossing railroad tracks as bearing directly upon plaintiff’s conduct in this case we refer to Huggart v. Railway, 134 Mo. 673; Hook v. Railway, 162 Mo. 580; Green v. Railway, 192 Mo. 131; Deane v. Railway, 192 Mo. 575; as well as Ross v. Railway, supra.
Judging from statements of counsel, plaintiff is a