Pope v. Kansas City Cable Railway Co.

Brace, J. The plaintiff is the widow of Nelson M. Pope, who was killed in a collision between a wagon and team that he was driving and a train of cable cars, near the corner of Ninth street and Grand avenue, in the City of Kansas, on the first day of July, 1886. In this action she seeks to recover five thousand dollars’ damages for his death, alleging as a cause of action that defendant was operating said cars at the time of the accident, and that her husband, in the exercise of proper care and caution, was crossing its railway track, “when the defendant, by its agents and servants,. negligently, carelessly and wrongfully ran its car against the wagon of said Pope, overturned the same and killed Mm.” [404] I. The sufficiency of the petition is questioned for the first time in the brief of counsel in this court. In the trial court, no objection was taken to it, either by demurrer or objection to the introduction of evidence, nor was there a motion in arrest of judgment. That it states a. cause of action, there can be no doubt; further than to ascertain this fact, we will not look into it. The objection urged against it, however, that it does not specify the particular act of negligence which it is claimed caused the injury, is answered by the cases of Sullivan v. Railroad. 97 Mo. 113; Johnson v. Railroad, 96 Mo. 340. II. It is urged that the demurrer to plaintiff’s evidence ought to have been sustained, because there was no testimony showing that the defendant was operating the train by which the deceased was struck. On the trial, neither this nor any other reason was assigned as ground of the demurrer to the evidence. The defendant did not stand on its demurrer, but proceeded to introduce its evidence on the merits. It did appear, however, from plaintiff’s testimony, that, in the month of May or June, just before the accident, the defendant was operating the cable train on this railway; the evidence of the defendant indirectly tended to show that they were operating the road at the time of the accident, and the whole examination by defendant of its witnesses, as well as the instructions it asked of the court, treated the case as if it was a conceded fact that the defendant’s servants were operating the cars on this railway on the day the accident happened. In such state of case, justice and fair dealing in the trial of cases between the parties litigant and the trial court require us on appeal, where such a defect is first specifically pointed out, to make every reasonable and fair inference in favor of the sufficiency of the evidence to prove such fact. The principle, that a state of facts once shown to exist will be presumed to continue until [405] the contrary is shown, is fairly applicable to this objection, and disposes of it, in connection with the defendant’s evidence, and its conduct of the trial, and no further consideration need be given it under the instructions of the defendant in the nature of a demurrer to the sufficiency of the whole evidence at the close of the case, which the court refused to give. Winters v. Kansas City Cable Ry. Co., post, p. 509 (12 S. W. Rep. 652.) III. It is contended that this instruction ought to have been given, however, for another reason, that upon the whole evidence the plaintiff failed to make out her case on the merits. The evidence for the plaintiff tended to show that the gripman of the traki, which ran into the deceased’s wagon and thereby killed him, discovered the plaintiff in the act of crossing the track on which the train was running when the train was at such distance from the wagon, that, if he had promptly used the appliances at his command for checking or stopping the train, the train could have been so stopped or retarded, that the collision would have been avoided, and the deceased would have gotten safely across the track without injury, and that he failed to so promptly use such appliances, or to stop or check the train, thus causing the accident and the death of the deceased. That this evidence made out a case on which the plaintiff was entitled to recover, if the jury believed the facts which it tended to prove, is no longer open for argument in this state. Jennings v. Railroad, ante, p. 394 (12 S. W. Rep. 999); Sullivan v. Railroad, 97 Mo. 113; Kelly v. Union Railway & Transit Co., 95 Mo. 279, and cas. cit.; Guenther v. Railroad, 95 Mo. 287, and cases cited. And the court committed no error in overruling the demurrer to the evidence on this ground. IV. The evidence for the defendant tended to show that when the gripman discovered the deceased in the act of crossing the track, on which the train was running, [406] he promptly used all the appliances at his command to check or stop the train, but that the train was so near to the wagon that the collision could not be avoided. On this state of evidence the court submitted to the jury, in one instruction for the plaintiff and three for the defendant, the issue whether the defendant’s servants could have avoided the injury by the exercise of reasonable care after the perilous situation of the deceased was discovered, and the jury found for the plaintiff. The instruction given .for the plaintiff is subjected by counsel to the following criticisms: (1) That it assumes that defendant’s servants were operating the cars. The answer is that plaintiff’s evidence tended to prove, and there waf no evidence tending to contradict, the fact assumed; the tendency of defendant’s evidence was to confirm it, and it was treated during the whole trial as a conceded fact by both parties. (2) That the instruction was calculated to confuse the jury inasmuch as there were two tracks in the street from three to five feet apart, and as the instruction simply told the jury it was the duty of defendant’s servants to keep a vigilant watch of the trade ahead, perchance the jury may have thought they were instructed that it was the duty of defendant’s servants to keep a vigilant watch of the track aside of that on which the car was traveling. It does not strike us that any serious confusion could have arisen in the minds of an ordinarily intelligent juror as to which track the court meant, specially when in connection therewith the object of the watch is directly stated to be in order to discover the plaintiff’s husband on the trade in time to have prevented the train whose machinery they were operating from running into and killing him. (3) That it required the gripman to stop the train if he could do so without regard to the safety of the train or its passengers. This is a mistake. The instruction did not require the train to be stopped at all. It merely required that the gripman should exercise ordinary care to prevent the injury. The evidence [407] was not such as to introduce tlie element of hazard to the train, or its passengers, into the case, nor did the instruction require that the train should have been slacked up or stopped by “any means in the power” of those managing it, thereby making necessary the introduction of the qualification, ‘ ‘ consistent with the safety of the train,” as was the case in Bell v. Railroad, 72 Mo. 50, to which we are cited in support of this point. The objections urged against the instructions are not well taken, and we fail to find in the record any error requiring a reversal of the judgment herein. It is, therefore, affirmed. All concur.