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Riggs v. Metropolitan Street Railway Co.

115 S.W. 969, 216 Mo. 304, 1909 Mo. LEXIS 329
CourtSupreme Court of Missouri
DecidedJanuary 14, 1909
StatusPublished
Cited by32 cases

This text of 115 S.W. 969 (Riggs v. Metropolitan Street Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riggs v. Metropolitan Street Railway Co., 115 S.W. 969, 216 Mo. 304, 1909 Mo. LEXIS 329 (Mo. 1909).

Opinion

LAMM, P. J.

Defendant appeals from a judgment of the Jackson Circuit Court for $6,000 damages in favor of plaintiff for personal injuries, whereby his left leg and foot were so mashed and mangled that amputation between the knee and ankle followed as a sequence.

The petition counts on the negligence of defendant’s servants in running one of its cars in Kansas City, in that (to quote) “said servants in charge of said car saw plaintiff upon said track and his perilous position upon said track, or by the exercise of ordi[310]*310nary care and caution could have seen plaintiff on said track, and in his perilous position on said track, in reasonable time to have stopped said car before injuring plaintiff as above set forth, but said servants of defendant carelessly and negligently failed to do so.”

There was yet another specification of negligence, viz.: the violation of a fender ordinance in force in Kansas City, but the case was not put to the jury on that issue — whether from indisposition or lack of evidence is immaterial. Either view eleminates that phase of the case on review.

The answer, besides raising the general issue, averred plaintiff’s contributory negligence.

The trial was long, the witnesses many, the evidence voluminous. Fortunately, the assignments of error do not call for the details of testimony witness by witness. Its tendency pro and con will do on some assignments; and where the point up seeks a closer and fuller statement of facts they will be stated in connection with the determination of the point itself.

Defendant assign error in overruling demurrers, in giving instructions and in ruling on the admission of evidence.

I. Of the demurrers.

(a) Counsel argue that it was error to overrule a demurrer to plaintiff’s evidence. But while offering such demurrer, defendant did not stand on it. It went on and put in its own proof. With the whole case in, the demurrer to plaintiff’s part of it fills no sensible office in procedure. On appeal the case must be viewed as a whole; and whether plaintiff make a case in law to go to the juiy is to be ruled, not only on view of his evidence in chief, but as well on view of defendant’s and plaintiff’s in rebuttal. Hence, this demurrer is afield.

[311]*311(b) But defendant at tbe close of all the evidence asked and was refused a peremptory instruction in its favor. This challenge in the nature of a demurrer, nisi, is kept alive and pressed with vigor here. Attending to it, it will be seen that the specification of negligence charged in the petition proceeds solely on the humanitarian doctrine. The charge is that defendant’s servants running the car saw or might have seen plaintiff in peril in time to have prevented his injury, and negligently failed to prevent it. In a nutshell, the theory of defendant on this assignment is that at the time and place of plaintiff’s injury the facts raised no duty to keep a lookout for him, ergo, there was no actionable breach of such duty. It insists that the full measure of its duty was not to negligently injure him after its motorman actually saw him in peril; moreover, that the proof fails to show the motorman was negligent in stopping the car after he discovered plaintiff’s peril, hence (counsel argue) it must be ruled as a matter of law that plaintiff was not entitled to go to the jury at all.

Without burdening the case by producing the testimony on the issue as to whether plaintiff’s peril was discovered in time to have stopped the ear with the appliances at hand and with safety to its passengers and those manning it, it is sufficient to say there is no evidence tending to show that the motorman failed to stop the car as soon as possible after his actual discovery of plaintiff’s peril. It is all the other way. The only eye-witness was the motorman himself. As presently seen, plaintiff’s left leg lay across the defendant’s track, he, plaintiff, knowing nothing of that fact. His testimony sheds no light on the distance the car was away at the time- the motorman saw the leg in that plight. There were no by-standers or onlookers. There were five or six passengers in the car but neither they nor the conductor saw plaintiff in peril before he was hurt. The testimony of the motor[312]*312man is to the effect that he was keeping an outlook ahead and when he first discovered plaintiff’s danger he at once used all diligence in reversing his power and stopped the car within a few feet, hut not in time to save the exposed leg. With the case in this fix, plaintiff was not entitled to go to the jury on the pleadings and evidence unless two things are true, vis: (1) unless defendant’s motorman owed a duty to keep an outlook ahead and see plaintiff’s peril if possible, and (2) unless he was able by due care to discover his danger in time to stop the car before injuring him.

(1) The first question for our determination, then, is: Did the motorman, time and place considered, owe a duty to plaintiff to lookout for him'? This question seeks vital facts. Attending to them, the record shows that at the time of the accident the city was as near fast asleep as a city gets. It was the rise of an hour after midnight cock-crowing. All street cars except owl cars had ceased to run. The place was the Bluff Street bridge, close to the Union Depot in Kansas City. There Union and St. Louis avenues join and come into Bluff street over the bridge. Prom said depot to the heart of the city an elevated railroad runs. Pedestrians (not taking the elevated railroad) and teams, wagons and vehicles passing from the city proper to the- depot and from it to the city proper use the most direct route, to-wit, the Bluff Street bridge— Bluff street as well as Union and St. Louis avenues being paved public streets of the city. The bridge is an iron structure about one hundred and twenty feet long from east to west and sixty-five feet wide from north to south divided into sections. It does not stand true with the cardinal points'of the compass but, for thé purposes of the case, its width may be taken as from north to south and its length as from east to west. Defendant has double tracks laid on Bluff street and across the bridge — one for east-going and the other for west-going cars. Its tracks (from the west) ap[313]*313proach the bridge on an upgrade of three or four per cent and they are laid in the central section of the bridge. North of its tracks is a section of the bridge devoted to driveways for teams, wagons, etc. South of the tracks is a section similarly used. South and north of these traveled ways are two other sections devoted to foot-travelers. Cars do not stop to take on or let off passengers on or close to the bridge. On said central section at its west end, slats are nailed diagonally across the tracks. These slats are two-by-fours projecting above the surface and are cut so that the rails may pass through. They are intended to fill a similar office to a cattle-guard at a railroad crossing, i. e., to prevent teams and wagons from passing on the tracks. The railroad section of the bridge is fenced off from the roadways on either side by iron posts and railings. The accident was at the west end of the bridge, and an idea of the locus may be got from tw photographic exhibits (No. 1 and No. 2) put in evidence, which we here reproduce. The letter “R” by the foot of the right-hand column of exhibit No. 1 is the spot (or near the spot) plaintiff puts himself as lying when struck by an owl car going east.

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Bluebook (online)
115 S.W. 969, 216 Mo. 304, 1909 Mo. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riggs-v-metropolitan-street-railway-co-mo-1909.