Boyle v. Bunting Hardware Co.

• Decision Date: 08 March 1922
• Docket Number: No. 14352.,14352.
• Citation: 238 S.W. 155
• Parties: BOYLE v. BUNTING HARDWARE CO.
• Court: Missouri Court of Appeals

238 S.W. 155

BOYLE v. BUNTING HARDWARE CO.

No. 14352.

Kansas City Court of Appeals. Missouri.

March 8, 1922.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially published."

Action by Ira Boyle against the Bunting Hardware Company. Judgment for plaintiff, motions in arrest and for a new trial were overruled, and defendant appeals. Affirmed.

Ingram D. Hook and Paul C. Sprinkle, both of Kansas City, for appellant.

McCanles, Kennard & Trusty, of Kansas City, for respondent.

ARNOLD, J.

This is a suit in damages for personal injuries sustained by plaintiff, a traffic patrolman in Kansas City, Mo., when struck by a truck owned by defendant, a corporation organized and existing according to law, and engaged in the wholesale hardware business in said city.

On March 23, 1920, between the hours of 8:30 and 9 o'clock a. m., plaintiff, in the discharge of his duties, was standing at the intersection of Tenth and Main streets, directing the movement of traffic. There is a jog in Tenth street at said intersection, so that the south property line on Tenth street east of Main continues in a direct line with the north property line west of Main street. There are double street car tracks on Main street at this point, extending north and south, the south-bound cars using the west track and the north-bound cars the east, while there is a single track on Tenth street both east and west of Main whereon cars are operated only in an easterly direction. Some street cars approaching this intersection from the west turn south on Main street, while others turn north into Main street, or follow the jog east on Tenth street.

To accommodate this operation of the street cars there is formed a triangle by the tracks, the base of which is the west line of the south-bound track on Main street, the apex pointing west into Tenth street west of Main. This triangular space is referred to as the "diamond." For the purpose of expeditiously directing the traffic, it was plaintiff's custom to stand within this diamond, and on the occasion in question he was standing at his accustomed place about 3 to 5 feet west of the west rail of the south-bound car track on Main street. A loaded truck belonging to defendant was going south on the west side of Main street, and had halted, with other south-bound traffic, north of said intersection, while east and west traffic was clearing. The truck in question was standing about 30 feet north of plaintiff. When plaintiff signaled north and south bound traffic to proceed the south-bound traffic broke into two lines, one passing behind and the other in front of him. He was standing at his usual place, his body facing the east, and his attention directed to the south toward a north-bound car.

As defendant's truck passed plaintiff the front part thereof cleared him, but a box on the rear end, projecting 3 or 4 feet over the side of the truck, struck plaintiff on the lower jaw, knocking him down and inflicting severe and painful injuries upon him. The driver of the truck testified that he saw plaintiff from the time he started to move forward in response to the signal until the front portion of the truck passed him—that he saw plaintiff standing in his usual place— and after the accident stated that he had forgotten about the projecting box; that he gave plaintiff no warning, made no effort to change the direction of the truck so that the projection would clear plaintiff, but drove straight on, looking at plaintiff, and knowing which way plaintiff was looking, until the box hit plaintiff.

The negligence charged in the petition is:

"That on or about the 23d day of March, 1920, while plaintiff was standing at the intersection of Tenth and Main streets in Kansas City, Mo., within the scope of his employment as a police traffic officer, the defendant, its agents and servants carelessly and negligently ran an automobile truck so close to plaintiff that a projecting part of the load on said truck came with great violence against plaintiff, knocking him to the ground and severely injuring him," ate.

The Injuries are described in detail, and judgment is prayed in the sum of $20,000. The amended answer is a general denial, with plea of contributory negligence. The reply was a general denial. The cause was tried to a jury resulting in a verdict and judgment for plaintiff in the sum of $2,000. Motions in arrest and for a new trial were overruled, and defendant appeals.

The first point urged for reversal of the judgment is that the proof did not follow the pleadings, and that plaintiff's instruction No. 1 is improper. Defendant argues that its truck moved from the place where it had stopped, and proceeded south along the customary course on the track for south-bound street cars, on the signal of plaintiff; that the signal of the traffic officer was in the nature of a command, and the defendant's truck, in obedience to such command, was required to halt or move forward; that the truck was not leaded in an unusual manner, and at other times, when similarly loaded, it had passed along the same route; that the manner in which it was loaded was not in violation of any traffic rules; that there was no negligence in the moving forward of the truck and proceeding southward in the manner in which it did move forward at the said time and place.

There is no charge in the petition that the truck was loaded in a negligent manner. The only allegation of negligence is that defendant, its agents and servants, "carelessly and negligently ran an automobile truck so close to plaintiff that a projecting part of the load on said truck came with great violence against plaintiff," etc.

The evidence tends to show that plaintiff was, at the time, in the exercise of his duties as traffic officer. Defendant urges that a traffic officer, in the performance of his duties as such officer, the same as other persons in the streets and highways, is bound to exercise reasonable care for his own safety. However:

"A traffic officer is not required to use the same degree of care in looking for approaching vehicles as an ordinary pedestrian." Barry on Automobiles, (3d Ed.) § 494.

It is said in Fitzsimons v. Isman, 163 App. Div. 262, 151 N. Y. Supp. 552:

"The intestate, as said, was a police officer, and at the time was performing his duty as such. He was undoubtedly, required, in view of the performance of the work assigned to him, to use reasonable care to prevent being run over. He was not, however, obligated to use the same degree of care that would be required of an ordinary pedestrian. The rule to be applied, in view of the work which he was doing, is similar to that applied to persons who are employed by a municipality to work upon the public streets."

Defendant declares the doctrine of res ipsa loquitur has no application here, for the reason that—

"As soon as it developed that the police officer was in the discharge of his duties, that he ordered defendant's truck to move forward at time and place, as he did, in the manner in which it was loaded at the time, he thereupon placed the duty upon himself to exercise reasonable care for his own safety. It follows, therefore, that his care for his own safety immediately became a part of the case," etc.

We are not inclined to agree or disagree with learned counsel that res ipsa loquitur is entirely eliminated from this case.

"The maxim, * * * literally translated, `the thing itself speaks,' means that when, through any instrumentality or agency under the management or control of a defendant or his servants, there is an occurrence, injurious to plaintiff, which in the ordinary course of things would not take place if the persons in control were exercising due care, the occurrence itself, in the absence of explanation by defendant, affords prima facie evidence that there was want of due care." 4 Words and Phrases, Second Series, p. 315, and cases cited.

The record shows plaintiff was standing in his usual place from which he was accustomed to direct traffic; that defendant's automobile truck drove by and struck him, by reason of the fact that part of the load projected over the side of the car. Plaintiff was required to watch all traffic then passing, and his duties were not confined to watching defendant's truck only. The driver of the car testified he had forgotten that the box projected over the body of the car. Under these facts it is unnecessary for us to hold that the doctrine of res ipsa loquitur applies.

Instruction No. 1, of which complaint is made, told the jury:

"* * * If you further believe and find from the evidence that the driver of said truck knew, or by the exercise of ordinary care might have known, that such projecting part of the load thereon was reasonably likely to strike the plaintiff, and if you further find from the evidence that in so operating said automobile truck so close to ...