Mayes v. Metropolitan Street Railway Co.

97 S.W. 612, 121 Mo. App. 614, 1906 Mo. App. LEXIS 508

Opinion

BROADDUS, P. J.

This is an action for damages for personal injuries. The plaintiff’s evidence tends to show that, on March 29,1900, she drove a buggy in which she Avas seated with the top and side curtains up and the back curtains down, from Eleventh street west to Walnut street, crossed over the defendant’s tracks to the south side and continued on south until she was opposite Wolferman’s grocery store near the middle of the block, at Avhich point her buggy was struck by one of defendant’s cars operated by a cable, which threw her out upon the street whereby she was injured. This evidence tends to show that the space between the west rail of defendant’s track and the curbing on the west AAras filled Avith vehicles of various kinds, so that in passing along she Avas compelled to keep so close to the defendant’s track that there was not space enough for-' the car to pass her buggy Avithout striking the wheels; that when she got opposite said store of Wolferman’s in order to pass by it she had to get still closer, if not partially on said track; that she was travelling in a slow trot and the car was travelling at a speed of from three to four miles an hour, but faster than the speed of the buggy; that about the time she started south on Walnut street she saw a car pass coming from the north; that she saw no other coming from that direction, and she did not look again; that she did not hear the ringing of the grip-man’s bell for her to get out of the way of the approaching car until just before the collision; that the gripman saw her for a distance of sixty feet or more Avhile her buggy Avas so near the track that the car could not pass without striking it; that the grip-man had perfect control of the car and could have stopped it at any time within from nine to twelve feet; and that she Avas severely injured as the result of being throAvn from her buggy.

The defendant’s evidence was to the effect that, while plaintiff was driving south on Walnut street there was sufficient room for the car to pass her, until she turned to pass the wagon at Wolferman’s store, when she suddenly turned upon the track and was struck by'the car, before the gripman had time to; prevent doing so with the greatest effort on his part; that he gave the usual warning in such cases by ringing his bell; that he had perfect control of his car and could and did stop it in from nine to twelve feet. The verdict and judgment was for plaintiff for $2,000 from which defendant appealed.

The defendant demurred to plaintiff’s case which was overruled by the court, which action of the court is assigned as error. The statement of the case we think shows that plaintiff was entitled to recover as she introduced evidence that tended to support the allegations of negligence set out in her petition. One of the grounds of negligence is that defendant negligently ran its car against her buggy when by the exercise of ordinary care, it could have avoided doing so. It is agreed that the defendant’s gripman saw plaintiff while she was driving south along the side and close to defendant’s track. And there was evidence, as has been stated, that her buggy was so close to the track that the car could not pass without striking it; that it was apparent that on account of the numerous vehicles on the street that she could not get out of the way of the car; that the grip-man could and should have seen and known that the buggy would have to get onto the track in order to get by the wagon in front of Wolferman’s store; and that the gripman could have stopped the car in a few feet as it was going but a little faster than the buggy.

It seems to us that the facts support the allegation of negligence on the part of defendant. And not only that, it tends to show also that plaintiff was not negligent on her part. She had the right to be on the street at the place and time in question. She was not bound to look back to see if a car was coming having used that precaution when she got upon the street. It is the duty primarily of person driving vehicles on the street while exercising proper care for their own safety to look ahead so as to be able to proceed with safety to the occupants and persons using such streets. And they have the right to presume that persons in control of street cars and other vehicles following them will be on the lookout for their safety, and avoid running upon them from behind. It is true that if plaintiff had heard the gripman’s bell it was her' duty to have got out of the way in order to let the car pass if she could have done so in safety. But it appears that owing to the fact that, another one of defendant’s cars was approaching from the south, it would not have been prudent or safe for her to have turned her vehicle to the east. It seems that she was aware of the fact that she was in a place where it was. dangerous to remain and that she pursued a reasonably safe course by continuing to drive along the street. And she had the right to assume that those following her would be on the lookout for her safety as has been before stated.

Another .allegation of the petition is that defendant’s employees in charge of the car'did see or could have seen that she was in a dangerous situation, and could have by the exercise of ordinary care prevented the collision. There was ample evidence to sustain the allegation. That the gripman did see plaintiff is not denied. But it is denied that she was in a dangerous situation. It is argued that she was in an open street, with nothing to prevent her from driving along in advance of the car as it was going at a very slow rate of speed, so that an ordinary horse could easily have kept ahead and avoided a collision. She was in peril however while she was so near the track that the car could not pass without striking her vehicle, so long as the car continued to advance at. a greater rate of speed than that of plaintiff’s vehicle. The gripman saw no evidence of increasing speed on plaintiff’s part, and as his car continued to advance and gain on plaintiff he had no right to assume under the facts that she would drive ahead out of the way. As the distance between the car and plaintiff decreased in proportion to the greater speed of the car her situation was evidently, under the circumstances, one of peril. The defendant’s argument does not dispose of the question of peril, but merely goes to show that upon the ' happening of the contingency suggested, that plaintiff would increase her speed, the collision would not have occurred. But after all the result showed that plaintiff was in peril. If plaintiff was in peril the act of defendant’s gripman in producing the collision, it seems to us was reckless and wanton as he not only could have seen blit did see her dangerous situation in time to have avoided it, had he exercised ordinary care. In fact there was evidence that the car pushed plaintiff’s buggy a distance of fifteen feet before it turned over. If this be true he could have stopped the car after he struck the buggy before it turned over and the injury would have been avoided. Such negligence is said to be reckless or wanton. [Moore v. Transit Co., 92 S. W. 390.] Whatever controversy may have existed heretofore as to what would constitute recicles s or wanton conduct upon the part of those operating dangerous machinery upon the streets of a city, there can bé no longer any doubt as to the meaning attached to those words since said decision. It was therefore proper that the case should have been submitted to the jury upon the theory of the humanitarian doctrine in the event that the jury should find that plaintiff through her negligence placed herself in a situation of peril.

Particular objections are made to the manner in which certain hypothetical questions were asked. One as to the time in which the car could have been stopped by the gripman liad he made the proper effort. The objection is that the question did not include all the facts in the case relating to the matter. Admitting the correctness of defendant’s contention, it is of no importance as defendant’s gripman testified that he could have stopped the car in from nine to twelve feet, and none of plaintiff’s witnesses testified that it could have been accomplished in a shorter distance.

Dr. Park L. McDonald a medical expert was asked: “Doctor are those injuries you have described such injuries as might naturally have resulted from the patient having been thrown from a buggy on the street?” Doctor Jones was asked: “Doctor, was the condition of the womb and knee such as might have resulted naturally from the patient having been thrown from a buggy on the street pavement?” Other questions of similar import were asked. A similar question arose in Glasgow v. Railway, 191 Mo. 347. It is there held that it is not competent to ask a medical expert to say that, in his opinion that plaintiff’s condition was the result of an alleged fall, but that it was competent for him to state what cause or causes might produce ' such a result. Tested by the above rule the evidence was competent.The question was also discussed in Holloway v. Kansas City, 184 Mo. 19, in which the court takes the same view of the law.

This in our opinion is a case well supported by the evidence. Taking, into consideration all the testimony we believe that defendant was negligent and that plaintiff Avas severely injured. The verdict is for the right party and ought to be affirmed, which is accordingly done.

All concur.