Flack v. Metropolitan Street Railway Co.

DISSENTING OPINION.

ELLISON, J.

I find myself prevented from concurring is the foregoing opinion on account of the testimony of the plaintiff himself. The conceded facts are that when his vehicle was struck by the car, it had gotten almost clear of danger. The collision was with the rear part. A bare moment more and *662this unfortuate affair would not have occurred. Plaintiff had seen the car coming before he turned across the track. He, of course, thought he could cross before it reached him; and if we assume that the motorman saw him, he too, could assume that there was time for the crossing. And there was time; but for a sudden change of plaintiff’s movement, which certainly the motorman could not have foreseen. Plaintiff testified that after starting across the track, he slowed down the speed to a mere drag. So it is clear that by reason of this act, for which no responsibility could attach to the motorman, the collision occurred. I think, as said by the Supreme Court (Boyd v. Ry Co., 105 Mo. 371) that unless motormen “are required to be such expert psychologists as to be able to read the minds of men, and know beforehand when a man is possession of all his mental faculties, is going to act in a way other then could be expected of an ordinarily prudent man, there was no evidence to take this case to the jury.”