McWhorter v. Dahl Chevrolet Co.

• Decision Date: 07 October 1935
• Citation: 88 S.W.2d 240,229 Mo.App. 1090
• Parties: W. E. McWHORTER, RESPONDENT, v. DAHL CHEVROLET CO. ET AL., DEFENDANTS; MORRIS HOFFMAN CONSTRUCTION CO., APPELLANT
• Court: Kansas Court of Appeals

88 S.W.2d 240

229 Mo.App. 1090

W. E. McWHORTER, RESPONDENT, v. DAHL CHEVROLET CO. ET AL., DEFENDANTS; MORRIS HOFFMAN CONSTRUCTION CO., APPELLANT

Court of Appeals of Missouri, Kansas City

October 7, 1935

Appeal from Circuit Court of Jackson County.--Hon. Emory H. Wright Judge.

AFFIRMED.

Judgment affirmed.

Cowgill & Popham, Sylvan Bruner and John F. Cook for respondent.

Langworthy Spencer & Terrell for appellant.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff, W. E. McWhorter, and for the loss of services and expense incurred on account of injuries to his son James B. McWhorter, a minor, as the result of a collision at the intersection of Eighteenth and Central Streets (public streets in Kansas City, Missouri) between an automobile in which plaintiff and his said son were riding, which automobile was at the time being driven in a westerly direction on Eighteenth Street, and an automobile being driven at the same time by one Edward M. Bowen in a northerly direction on Central Street.

The action was instituted in the Circuit Court of Jackson County on June 22, 1931. Upon trial had before a jury, a verdict was returned for plaintiff for $ 4450; and, from a judgment for plaintiff duly entered thereon in said sum against the defendant Morris Hoffman Construction Company (hereinafter called the defendant construction company), it, after a timely but unsuccessful motion for a new trial, appeals.

There is evidence tending to show that, at the time of the collision, the defendant construction company, as contractor, was engaged in constructing a two-story brick and concrete building on property located at the southeast corner of the intersection of the two streets mentioned; that the two streets mentioned, where they abutted upon the property upon which the building was being erected, were covered with bricks, mortar boxes, concrete mixers, cinder blocks, barrels, building material of various kinds placed and stored thereon by the defendant construction company for use in connection with the prosecution of its work in erecting the building; that Eighteenth Street was thirty feet wide from curb to curb with a ten foot sidewalk between the curb and the property line and abutted the building site on the north, and Central Street was thirty-six feet in width from curb to curb with a sidewalk twelve and one-half feet wide and abutted the building site on the west; that Eighteenth Street was upon a rising grade as it approached the intersection from the east, as likewise was Central Street as it approached from the south; that the defendant construction company was using at least, if not more than, one-half of both streets for the deposit and storage of the materials mentioned and had piled the same six or more feet high along the sides of the streets next to the building it was constructing and in such manner that the view of motorists traveling west on Eighteenth Street and north on Central Street was obscured to such an extent that it was impossible for them, in approaching and crossing over the intersection of said streets, to see one another until one of them reached a point at or past the center of the intersection; that, on Eighteenth Street, the materials were deposited in the street beginning approximately with the corner of the building next to Central Street and running back about half the length of the building. Likewise, on Central Street, the materials deposited extended south from the southeast corner of the building at Eighteenth Street along the east half of Central next to the property line for quite a distance. There is likewise some evidence tending to show that materials were deposited upon the intersection.

There is evidence tending to show that the plaintiff, with his minor son James B. McWhorter, was riding in an Auburn car driven by L. H. Waters, an employee of the Dahl Chevrolet Company, and that, as they passed over the intersection of the streets mentioned, their car was run into by a car coming on the intersection from the south on Central Street, driven by one Bowen, and they were severely injured. The car in which plaintiff was riding was going west along Eighteenth Street at a speed variously estimated. The plaintiff placed it at eighteen to twenty miles per hour, while the driver thereof placed it at from eight to ten miles per hour. It was on the north side of Eighteenth Street, the driveway on said street being restricted by reason of the materials upon the south half thereof. Likewise, the traveled part of Central Street was restricted to a narrow way upon the west side thereof, by reason of the materials upon the east half thereof. When the car in which plaintiff was riding reached a point about the center of the intersection, the driver was able to obtain his first view of the car being driven by the said Bowen proceeding north on the west side of Central Street toward the intersection. His view thereof prior to reaching that point was cut off by the materials deposited on the streets between him and that car. There is evidence tending to show that the materials were also placed over in the intersection. The evidence tends to show that this was the first point at which one traveling west on Eighteenth Street could see a car coming north on Central Street. The evidence tends further to show that, when plaintiff first saw the Bowen car, that car was coming right into his car; that the car in which he was riding sped up, seeking to get out of its way; that the rear part thereof was struck by the Bowen car and thrown into the curb or against the pole at the northwest corner of the intersection; and that plaintiff sustained serious injuries, as did also his minor son James B. McWhorter, and plaintiff has been compelled to incur much expense on account of medical and other treatment for himself and his son on account of such injuries.

The plaintiff introduced in evidence sections 575 and 579 of chapter X, article 6 of the General Ordinances of Kansas City in force and effect at the time of the accident, reading as follows:

"No person, firm or corporation shall deposit upon any portion of any street, side-walk, alley or public place, refuse from or building material for any building or structure being erected on abutting property so long as there shall be room upon such property for such refuse or building material; neither shall any such person, firm or corporation remove earth or rock from an excavation without first obtaining a permit therefor from the Commissioner of Street Cleaning, and before such permit shall be issued by the Commissioner of Street Cleaning, the applicant shall have obtained a building permit for such building or structure from the Commissioner of Buildings and Inspections. If there is not sufficient room upon the property upon which any building is being erected for the deposit of such refuse or material as is hereinbefore specified, then upon application to the Commissioner of Street Cleaning a permit may be granted for the deposit of such refuse or building material in the street in front of the property.

"All applications for permits provided for in this article shall be signed by the person or duly authorized agent of the person, firm or corporation who desires to use any street, sidewalk, alley or public place for any purpose in the preceding paragraph, and said permit shall state in plain terms the location and object of such permit."

"No person, firm or corporation shall use or occupy more than one-third of the roadway nor more than one-half of the sidewalk space or alley for the piling or storing of building material. Such use or occupation shall be confined to the roadway, sidewalk space or alley abutting on the property where the building or structure is to be erected. However, if the written consent and waiver of claims for damages against Kansas City is obtained from all the owners of property adjoining that upon which said building or structure is to be erected, then the Commissioner of Street Cleaning may extend the right to use or occupy such roadway, sidewalk space, alley or public place upon the terms and conditions herein provided, for those places which adjoin the property where the building or structure is to be erected."

The record shows an agreement by counsel that the defendant construction company had made application for and procured from the proper authorities of the city a permit under said ordinance for the use of one-third of the streets.

Plaintiff's petition was based upon the charges of both common law negligence and negligence in the violation of the city ordinance mentioned prohibiting the defendant from using more than one-third of that part of the roadways abutting on the property.

The defendant construction company answered (1) by way of general denial and (2) that, at the time of the injuries complained of by plaintiff, the automobile in which he was a passenger was being driven with his advice and consent at a wrongful and unlawful rate of speed and that, at such time, the car being driven by Bowen, with which the car in which the plaintiff was riding collided, was being driven by said Bowen at a wrongful and unlawful rate of speed and that, by reason thereof, section 43 of ordinance 2031, in force in Kansas City regulating the rate of speed of motor vehicles upon the streets of Kansas City, was violated by the plaintiff, the driver of his car, and Bowen.

Section 43 of ordinance 2031 appears in the record as offered by the defendant construction company.

Plaintiff's petition as filed made not only the defendant construction company defendant but also made Bowen (the driver of the car which ran into ...