Michael v. Kansas City Western Railway Co.

JOHNSON, J. Plaintiff, a fireman employed in the fire department of the city of Leavenworth, Kansas, received personal injuries in a collision between a combined hose and chemical wagon on which he was riding and an electric street car operated by defendant and, claiming that his injuries were caused by the negligence of defendant, instituted this suit to recover the damages he suffered in consequence of his injuries. The answer includes a general denial, a plea of contributory negligence and a further plea that laws of the state of Kansas preclude a recovery in all cases of personal injury where negligence of the plaintiff contributed to the injury, regardless of the nature of the negligence of the defendant. Doubtless the purpose of this last plea was to interpose a special defense to negligence pleaded in the petition under what is known in this state as the last chance doctrine, but since the issues of such negligence was abandoned at the trial and was not submitted to the jury it will not be necessary to bestow further attention upon it. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $5,-000, and the cause is here on the appeal of defendant. — 59 — The injury occurred in the afternoon of June 13, 1908, on Fifth street between Seneca and Shawnee streets in Leavenworth. Fifth street runs north, and south and is intersected at right angles by the other two mentioned streets. An east and west alley fourteen feet wide bisects the block and just south of this alley and on the east side of Fifth street is the engine house of the fire department where plaintiff was employed. The house had three large entrances and its front wall was sixteen feet from the curb line on the east side of Fifth street. The wagon on which plaintiff was riding emerged from the north door which was five feet south of the alley. The pavement of Fifth street is forty feet wide and defendant operated a single track street railway along its center. Consequently the distance between the doorway of the fire house and the east rail of the track was between thirty-three and thirty-four feet. It was about 200 feet from the doorway to the north line of Seneca street. Fifth street was paved with brick and the sidewalk space in front of the fire house was paved with asphalt and sloped from the building to the street gutter. Plaintiff was thirty-one years old and had been employed by the fire department thirteen days before the injury. He was being taught the duties of a driver but had not completed his period of instruction and was not allowed to drive to a fire. An alarm of fire came in and plaintiff assisted in hitching the horses to the hose and chemical wagon and jumped on the running board, putting on his coat, as the team dashed forward. His foreman did the driving but sat on the left side of the driver’s seat. As soon as plaintiff put on his coat he seated himself next the driver. The team plunged out of the house on a. gallop and, on account of the narrowness of the street, the slope of the asphalt pavement and the presence of some vehicles on the east side of the street, the driver, whose — 60 — course required Mm to drive north, pointed the team due northwest, intending to cross the street car track to the west side of the street. According to the evidence of plaintiff a large bell on the fire house sounded the fire alarm before the wagon emerged from the building and as soon as they could see north on Fifth street, both plaintiff and the driver looked and saw a southbound street car at the north side of Seneca street or just in that street. This evidence places the front end of the street car about 200 feet írom a point on the track directly in front of the north door of the fire house and as the team took a northwest course, about 155 feet from the place of collision. At this time the front end of the wagon where plaintiff was seated was approximately, forty-five or fifty feet from the place of collision. Neither plaintiff nor the driver looked again towards the street car until the team reached the track when looking, they discovered that a collision was imminent. An instant later the car struck the front end of the wagon and plaintiff and the driver were thrown forward out of their seats. Plaintiff fell across the tongue of the wagon and sustained serious injuries. There is evidence tending to show that the street car was running at the rate of twenty or twenty-five miles per honr and that the motorman made no effort to stop or reduce speed though he was at his post looking ahead and must have seen the team come out of the building and rush across the track and must have heard the clamor of the fire bell. Further the evidence tends to show that the motorman easily could have stopped the car after- he saw and heard these things and thereby have prevented a collision. The evidence of defendant contradicts that of plaintiff in several vital particulars. It tends to show that the fire alarm was not sounded until after the wagon came out of the doorway; that the street car then was south of Seneca street, was running slowly — 61 — and that the occupants of the driver’s seat on the wagon seemingly confused and unsettled in their positions, did not look in the direction of the car hut drove right into it. Passing to the law of the case our first consideration shall he the demurrer- to the evidence which defendant argues should have been given and in our discussion of the questions thus raised, we shall look at the facts of the case only from the viewpoint of the evidence of plaintiff. The burden is on plaintiff to establish the fact, if it he a fact, that his injuries were directly caused by negligence of the motorman in the operation of the car. If his evidence fails to accuse the motorman of such negligence, or if it does thus accuse him hut further discloses that unquestionably plaintiff was guilty of contributory negligence, plaintiff has no cause of action and must fail in his suit. The argument of counsel for defendant may he resolved into the following propositions: First, there is no evidence that negligence of the motorman caused the injury. Second, the evidence conclusively shows that plaintiff himself was guilty of negligence in entering the path of danger when by the exercise of ordinary care he might have discovered the danger and given timely warning to the driver and, third, the driver was negligent in plunging headlong and blindly across the track and that his negligence should he imputed to plaintiff. In the discussion of these propositions counsel rightly assume that they are to be determined in the light of the Kansas law, and that if plaintiff has no cause of action under the law of the state where he was injured, he can have none in the courts of this state. [Chandler v. Railroad, 127 Mo. App. 34] Defendant offered in evidence and relies in its brief upon the following decisions -of the Supreme Court of Kansas as supporting its contention that plaintiff should have been non-suited. [Bush v. Railroad, 62 Kan. — 62 — 709, 64 Pac. 624; Bussey v. Railroad, 66 Kan. 735, 71 Pac. 261; Railroad v. Holland, 60 Kan. 209, 56 Pac. 6; Railroad v. Adams, 33 Kan. 427, 6 Pac. 529; Railroad v. Wheelbarger, 75 Kan. 811, 88 Pac. 531; Honick v. Railroad, 66 Kan. 124, 71 Pac. 265; Dyerson v. Railroad, 74 Kan. 528, 87 Pac. 680.] We find nothing in -those cases at variance with the law of our own state. None of them deals with the subject of the rights and duties of firemen going to a fire. Ordinarily the law makes no distinction between the different classes of users of public thoroughfares. Pedestrians, drivers of horses, autoists and street car motormen have equal rights to the use of the streets and none will be allowed to assert superior rights over the others. And it is the duty of persons crossing street car tracks to employ their senses for their own protection and this duty continues until an attempted crossing has been safely made. But the law wisely excepts firemen going to a fire from the operation of these almost universal rules. In some states the exception has received legislative recognition but it needs no statutory aid to give it force and vitality. Fire is the best of servants and the most tyrannical of masters. When escaping control it breaks out in thickly populated places its enormous capacity for evil and the rapidity of its expansion makes the performance of the task of regaining control over it one of general public concern and creates an imperative emergency that will brook no delay, however slight. Public servants employed to fight an enemy so dangerous, of necessity, must be accorded a right of way over the public streets superior to that enjoyed by the different classes to which we have referred. The rule thus is stated in 36 Cyc. 1513: “It is the duty of the motorman or other person in charge of a street car to give- way to, and to use due precaution to avoid colliding with, a fire engine, truck, or wagon on its way to extinguish a fire and save prop — 63 — erty therefrom, and to hold himself in readiness to avoid sneh collision when he has reason to anticipate that such an engine, truck, or wagon may appear, as when he is approaching and passing a house in which they are kept. The exercise of such precaution may he and sometimes is required by a rule or regulation of the. sreet railroad company, or by ordinance or statute. ’ ’ Under this rule the evidence of plaintiff clearly discloses negligence on the part of defendant’s motorman. Hearing the alarm and knowing that he was about to pass an engine house it was his duty to stop or bring his car under such control that it could be stopped instantly. Seeing the hose wagon dash out of the house he had no right to assume, especially in the face of contrary appearances, that it would turn sharply to the right and avoid crossing the car track. It was his duty to give the wagon ample room and not impede or endanger its progress. Of the negligence of the motorman there can he no question, if the facts disclosed by the evidence of plaintiff are the true facts of the case. As to the issues relating to the alleged negligence of plaintiff and the driver, we would not he justified in declaring as a matter of law that either was negligent. Here again ordinary rules must give way to necessity. Extreme haste and some initial confusion necessarily characterize the response firemen must give to an alarm. They must observe the care that an ordinarily careful and prudent person in their situation and circumstances would observe, hut we would do. wrong to hold that notwithstanding they had the right of way and were tensely occupied with the duties and dangers of a breakneck race they should continue to observe the street car and could not count on their right of way being respected by the - motorman. The issues under consideration are presented by all the evidence as issues of fact for the jury to solve. — 64 — The demurrer to the evidence was properly overruled. Counsel for defendant object to instruction No. 1, given at the request of plaintiff. We find the rules of law stated in the instruction have the express approval of the Supreme Court in Moore v. Transit Co., 126 Mo. 265 and in Heinzle v. Railway, 182 Mo. 547, and of this court in Moxley v. Railway, 123 Mo. App. 80. And we do not believe it fairly may be said that the instruction enlarged the scope of the pleaded cause of action or submitted questions of law for decision by the jury. The instructions must be read as a whole and thus reading them, we find the issues of fact clearly and accurately defined. The point made in the briefs of defendant that the verdict was excessive has no merit and will not be discussed. The judgment is affirmed. All concur.