Allen v. Purvis

• Decision Date: 16 June 1930
• Docket Number: No. 16911.,16911.
• Citation: 30 S.W.2d 196
• Parties: ALLEN v. PURVIS.
• Court: Missouri Court of Appeals

30 S.W.2d 196

ALLEN v. PURVIS.

No. 16911.

Kansas City Court of Appeals. Missouri.

June 16, 1930.

Rehearing Denied June 30, 1930.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be officially published."

Action by Kathryn Allen, a minor, by Terrance Allen, her next friend, against Bernice Purvis. Judgment for plaintiff, and defendant appeals.

Affirmed.

Ryland, Stinson, Mag & Thomson, of Kansas City, for appellant.

Harry G. Kyle and Walter A. Raymond, both of Kansas City, for respondent.

BOYER, C.

Action for damages. Plaintiff sued to recover for injuries received by her on account of being struck by an automobile when she was attempting to cross Grand avenue at its intersection with Eleventh street in Kansas City, Mo.

The petition upon which the case was tried charged that her injuries were directly caused by the negligence of the defendant, in this: "That she drove said automobile at a dangerous and negligent rate of speed under the conditions and circumstances then and there existing in said intersection; that she negligently failed to sound any warning of the approach and movement of said automobile upon said intersection; that she negligently failed to swerve said automobile to one side and have thus avoided striking plaintiff; that she negligently failed to keep proper lookout ahead or laterally while driving upon said intersection.

"That she negligently drove said automobile into violent collision with the plaintiff after she saw or by the exercise of the highest degree of care could have seen the plaintiff in or about to go into a position of peril, in time by the exercise of the highest degree of care with the appliances at hand and with reasonable safety to herself to have sounded a warning, slowed down said automobile, swerved said automobile to one side or stopped the same in time to have avoided the collision, but negligently failed so to do."

It is further alleged that defendant negligently failed to stop said automobile when by the exercise of the highest degree of care it could have been stopped before striking plaintiff, and that she negligently drove said automobile across said intersection at a high and negligent rate of speed and in excess of 15 miles per hour. Provisions of the speed ordinance of Kansas City were also pleaded, but the case was not submitted with reference to said ordinance.

The answer was a general denial and a plea of contributory negligence on the part of plaintiff, in these words:

"Further answering plaintiff's first amended petition filed herein, defendant states that whatever injury, if any, the plaintiff received at the time and place set out in her first amended petition, was the direct result of her own negligence and carelessness in failing to properly look out for the approach of automobiles when she knew that automobiles passed said intersection and said point on Grand Avenue frequently and in great numbers, and in crossing said street at a point other than an intersection, and that said carelessness and negligence of the plaintiff directly contributed to her said injuries, if any."

The answer also pleaded a violation of a city ordinance by the plaintiff in the manner in which she attempted to cross the street.

At the conclusion of the evidence, the case was submitted to the jury upon instructions which returned a verdict for plaintiff in the sum of $5,000 signed by the foreman alone. Defendant duly appealed, and the errors assigned are based upon instructions said to be erroneous, and the amount of the verdict said to be excessive.

The facts developed at the trial show, or tend to show, that plaintiff received her injuries July 22, 1927, shortly before 6 o'clock p. m.; that she was 17 years of age, and was on her way to her place of employment at the main office of the Southwestern Bell Telephone Company. She was walking eastwardly on the sidewalk on the south side of Eleventh street approaching Grand avenue, a public thoroughfare which runs north and south; Eleventh street, also a public thoroughfare, runs east and west. The intersection of these streets at the time in question was one of the busiest corners in Kansas City. A traffic officer was standing at or near the center of the intersection operating a semaphore bearing the words "go" and "stop," which he used together with a whistle signal to indicate the right of way for traffic upon the streets. As plaintiff approached Grand avenue, the traffic was moving east and west upon Eleventh street; she started to cross Grand avenue by walking directly east in what is designated as the pedestrian lane, or what would be an extension of the sidewalk lines on the south side of Eleventh street. A double line of street railway tracks were laid in the central portion of Grand avenue; street cars ran south upon the west track and north upon the east track. About the time that plaintiff reached the street car track in her progress across Grand avenue, the traffic officer signaled for a change of traffic from east and west to that of north and south. Plaintiff stepped forward to about the east rail of the west street car track, where she stopped because a street car was then standing upon the east track and was about to start, and did start to proceed north. While she was standing in this position, she was struck by an automobile driven by the defendant from the north and knocked a distance of 10 or 15 feet, and when picked up her body was lying across the east rail of the south-bound railway track.

The evidence tends to show in behalf of plaintiff that when she started across Grand avenue, and when she stopped to allow the street car to go by her, rather than attempt to walk in front of it, there were no cars then approaching from the north, and that she was not aware at any time that the car driven by defendant was approaching her. The evidence further tends to show that defendant was driving the automobile in her charge southwardly on Grand avenue approaching Eleventh street, and was driving upon the west line of the railway tracks, and about the time that she entered Eleventh street and crossed same she was driving at a rate of speed from 20 to 25 miles or more per hour; that she drove across Eleventh street ahead of other cars which had been stopped at the intersection awaiting the signal to proceed; that as she drove across Eleventh street she continued upon the street car track and there were no automobiles or obstruction upon her right-hand side to prevent her turning the car to the right; that she did not turn it to the right, but drove straight ahead and struck the plaintiff. The evidence further tends to show that, from the time defendant entered Eleventh street until the time she collided with plaintiff, there was no obstruction of any kind to prevent her observing plaintiff's position. The evidence of defendant and some of her witnesses is to the effect that plaintiff was not seen by the defendant nor by other occupants in the car driven by her until the car was within 3 or 4 feet of the plaintiff. Defendant claimed that plaintiff stepped out in the street from behind other cars proceeding southwardly on Grand avenue, and immediately in front of her automobile. There was evidence that there was no signal, or warning, or effort to stop, or to turn the automobile in any direction, and that defendant did not see plaintiff until the car driven by defendant was within 3 or 4 feet of the plaintiff. Defendant testified that she then stopped the car almost immediately, and that her car merely bumped into plaintiff and pushed her over. Defendant was driving a Reo automobile occupied by herself and four of her relatives. The brakes of the car were in good condition. Defendant testified that she crossed Eleventh street at a rate of from 10 to 15 miles per hour. Evidence for plaintiff showed that under the conditions present a car similar to the one driven by defendant and equipped as she described it, going at a rate of speed of 10 miles per hour, could be stopped almost instantly; and within a distance of 12 or 15 feet going at 15 miles per hour; and within a distance of 18 or 30 feet going at a speed of 20 miles per hour; and in a distance of 24 or 25 feet going at a speed of 25 miles per hour.

The evidence further showed that Grand avenue was 64 feet wide and that Eleventh street was approximately 35 or 40 feet in width. A new traffic rule permitting automobiles to pass down the street upon the street car tracks through the safety zones had just gone into effect. Plaintiff was not aware of this and was not expecting an automobile to pass down the street car tracks where she was standing. The evidence tends to show that she was wholly oblivious of her peril from defendant's automobile, which at that time was approaching from the north on the south-bound car tracks, and there was no evidence to the contrary. Defendant admitted she made no effort to turn her car to the right or to sound an alarm, and other witnesses testified to the same effect. Defendant claimed, however, that she could not turn to the right on account of other automobiles upon her right and ahead of her car. Plaintiff's evidence tended to show there were no cars upon her right or any other obstruction to prevent her from turning to the right.

Plaintiff suffered various injuries; she was at first apparently unconscious and then became hysterical; some of her teeth had been broken and loosened; her lips and face were cut and bruised, and she sustained various bruises upon her arms, legs, and body, and suffered wrenches and sprains of her knees and back; she was carried in an automobile to a hospital, where she remained one week; her limbs and back were bandaged; at the end of her term in the hospital, she was removed to her home, where she was compelled to remain for a period of 5 weeks, unable to resume her employment; her physician said that at the time she left the hospital, he was of opinion that...