Billingsley v. Kansas City Public Service Co.

• Decision Date: 08 May 1944
• Docket Number: No. 20350.,20350.
• Citation: 181 S.W.2d 204
• Parties: BILLINGSLEY v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

181 S.W.2d 204

BILLINGSLEY v. KANSAS CITY PUBLIC SERVICE CO.

No. 20350.

Kansas City Court of Appeals. Missouri.

May 8, 1944.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

"Not to be published in State Reports".

Action by Eveline B. Billingsley against Kansas City Public Service Company for injuries sustained in a collision between an automobile in which plaintiff was riding as a guest and a streetcar owned and operated by the defendant. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Charles L. Carr and Hogsett, Trippe, Depping & Houts, all of Kansas City, for appellant.

Trusty & Pugh and John W. Hudson, all of Kansas City, for respondent.

SPERRY, Commissioner.

This is a suit for damages growing out of a collision between an automobile in which plaintiff, Eveline B. Billingsley, was riding as a guest, and a street car owned and operated by defendant, Kansas City Public Service Company. Verdict and judgment in the sum of $4800 was for plaintiff and defendant appealed.

The record herein consists of more than 600 pages. It will make this opinion too long to set out the evidence in detail but it will be necessary to set it out rather fully in order to rule the many questions involved, including defendant's contention that its demurrer to the evidence should have been sustained.

The collision occurred at about 3:30 a. m., at a point on Meyer Boulevard in Kansas City, where it is intersected by defendant's Country Club line, about 600 feet south of 63rd Street. Meyer Boulevard is 76 feet wide from curb to curb at the point of intersection, because the curbing there on the south side of Meyer curves to form an arc with an intersecting street; but it is 50 feet wide west of said intersection. The parking between the curb and the sidewalk is 20 feet wide. Meyer is an east-west street and the car line is a north-south line. Defendant's street car was proceeding southward and the automobile in which plaintiff was riding was proceeding eastward at the time the collision occurred.

Plaintiff offered testimony tending to prove that she and a Mr. Majors were, at the time of the collision, riding in the rear seat of an automobile owned and operated by Mr. Childers, whose wife was riding in the front seat with him; that the two couples had been to Mary's Place for lunch, after having attended a Sunday School dance earlier, and were on their way home; that Childers slowed the automobile to a stop, or virtually stopped, changed gears and turned eastward from Wornall into Meyer, 327 feet west of the scene of the collision; that immediately after turning into Meyer the automobile was proceeding at a rate of speed of 10 miles per hour but continued to gain in speed until, as it approached the intersection, its speed was estimated to be from 20 to 25 miles per hour.

It had been raining and mist was falling. The windshield wiper was in operation and there were beads of moisture on the windows and windshield except where the wiper operated. The brakes on the automobile were in good condition. Childers had good eyesight and hearing, was an expert driver, and was looking straight ahead as he drove, in approaching the crossing, and was driving slowly and carefully. Mrs. Childers was turned sidewise to the left, somewhat toward the driver, and was talking to the rear seat occupants. Neither she nor plaintiff saw the street car prior to the collision, but that Mrs. Childers saw the lights shining on her husband's face at about the instant of collision. All occupants of the automobile were instantly rendered unconscious. Childers later died from injuries so received. There is no testimony from him in the record, and Majors was unable to remember anything about the collision or the attendant circumstances.

There was testimony to the effect that the street car entered the intersection, without slowing its speed or giving any warning, at from 20 to 30 miles per hour; that its front end was past the middle of the intersection when the hood of the automobile was directly in its path, at which time the gong was sounded and the brakes applied; that defendant maintained a "slow" sign at this crossing, swung over the tracks, and that it meant for operators of street cars to proceed at a reasonable rate of speed for the safety of defendant's employees, passengers and property, and of others; that there was sand on the tracks (from the brakes of the street car) extending from a point 15 feet south of the north curbing of Meyer, southward to the street car; that when the street car is put in "emergency" sand is immediately and automatically applied to the rear wheels as well as the front; that the street car is 48 feet long and, upon application of emergency brakes, could have been stopped within a distance of from 24 to 40 feet if traveling at a speed of 20 miles per hour, and from 30 to 55 feet at 25 miles per hour; that the automobile was struck about in the center of its left side and pushed forward a distance of 53 feet, up the track; that after the accident it was upright with its front wheels east of the track and its rear wheels west; that the left side was caved in about 18 inches and the front seat was pushed out that distance through the opposite door.

A Mr. Whitehead and a Mr. Siek testified that they drove in a car to the scene of the collision, and were the first to arrive. Whitehead testified to the effect that Mr. Best, defendant's motorman, had just alighted from the street car and was walking towards the intersection and that they met and talked to him when he was about 10 feet from the south end open door of the street car; that the motorman asked them to report the accident to the police and defendant company, and to call an ambulance; that the motorman told them that he did not see the automobile until he was upon it. Mr. Siek testified, by deposition, that as the automobile in which he and Whitehead were riding neared the street car, "the motorman was standing on the steps flagging to our car to stop;" that he and Whitehead got out of their car and talked to the motorman and the motorman asked them to report the accident to police at 63rd Street; that the motorman told them that the car approached at a rapid rate of speed and "that it was almost on the track before he saw it." Their evidence was to the effect that this conversation occurred immediately after the collision, before the police arrived and before the automobile had been moved or anyone had looked inside of it. Defendant objected to the introduction of testimony relative to the above statement and the motorman denied making said statement.

Defendant contends that the court erred in admitting the statement alleged to have been made by the motorman to Siek and Whitehead. The circumstances attending at the time the statement was made, render the statement admissible in evidence as a part of the res gestae. Smith v. Producers Cold Storage Company, Mo.App., 128 S.W.2d 299, loc.cit. 306, 307; Brinkley v. United Biscuit Company, 349 Mo. 1227, 164 S.W.2d 325, loc.cit. 330. The circumstances under which this statement was made are unlike those in Sconce v. Jones 343 Mo. 362, 121 S.W.2d 777, loc.cit. 780; State v. Hayes, Mo.Sup., 247 S.W. 165; Cramer v. Parker, Mo.App., 100 S.W.2d 640; Redmon v. Metropolitan St. R. Co., 185 Mo. 1, loc.cit. 7, 84 S.W. 26, 105 Am.St. Rep. 558. The trial court has some discretion which he may exercise in ruling evidence on the theory of res gestae and he did not abuse his discretion in admitting the testimony. Woods v. Southern R. Co., Mo.Sup., 73 S.W.2d 374, loc.cit. 377; Smith v. Producers Cold Storage Co., supra.

Plaintiff testified to the effect that each member of her party, including the driver, had had one whiskey highball at about 9 p. m., but she offered positive evidence tending to prove that they had drunk no other intoxicating liquor during the night, many witnesses testified that the driver was not intoxicated, and there was no evidence tending to prove that he was.

Defendant's motorman testified to the effect that after leaving 63rd Street he increased speed up to 23, 24, 25 miles per hour; that as the street car approached Meyer he cut off the power and coasted; that he sounded the gong a number of times before entering the intersection; that the speed of the street car as he entered Meyer was 20 miles; that as he passed the north sidewalk along Meyer (which is about 60 feet from the center of Meyer) he saw the automobile at a point about 250 feet west of the tracks; that he observed nothing out of the ordinary about it at that time and continued to observe it; that when the front of the street car was 15 feet out in Meyer the automobile was 150 feet west, coming at a speed of 45 to 50 miles per hour, and he realized that the automobile was not going to stop; that he then threw the brakes of the...