Burris v. Kansas City Public Service Co.

• Decision Date: 06 February 1950
• Docket Number: No. 21260,21260
• Citation: 226 S.W.2d 743
• Parties: BURRIS v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 743

226 S.W.2d 743

BURRIS v. KANSAS CITY PUBLIC SERVICE CO.

No. 21260.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1950.

Charles L. Carr, Arthur C. Popham, Sam Mandall, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for appellant.

Homer A. Cope, Leon V. Copley, and Walter A. Raymond, Kansas City, for respondent.

BOUR, Commissioner.

This is an action for personal injuries and property damage resulting from a collision between a streetcar operated by defendant and a truck driven by plaintiff. Plaintiff recovered a judgment for $4765, and defendant has appealed.

The first amended petition on which the case was tried alleges that Twelfth Street runs east and west in Kansas City, Missouri, and Wabash Avenue runs in a northerly and southerly direction intersecting Twelfth Street; that on September 15, 1945, plaintiff was driving his truck in an easterly direction on Twelfth Street, and when the truck had reached a point on said street at or near the intersection of Twelfth Street and Wabash Avenue, one of defendant's streetcars, being operated also in an easterly direction on Twelfth Street and to the rear of plaintiff's truck, was negligently controlled and operated by defendant as to cause the streetcar to collide with the rear of plaintiff's moving truck, thus causing the truck to come into contact with an iron utility pole, as a result of which the truck was damaged and plaintiff suffered many personal injuries. The answer admits defendant's corporate capacity and that there was a collision, denies every other allegation of the petition, and pleads specific grounds of contributory negligence.

Plaintiff testified on direct examination as follows: Just prior to the accident he drove his truck south on Olive Street to Twelfth Street. Before entering Twelfth Street, at Olive, he stopped, looked west and saw and eastbound streetcar on Twelfth Street, about two blocks away, just leaving the intersection at Twelfth Street and Brooklyn Avenue. He made a left turn into Twelfth Street, and as he drove eastwardly on that street towards Wabash Avenue, intending to turn south on Wabash, his truck was straddling the south rail of the streetcar track on which the streetcar mentioned was proceeding. He heard the streetcar bell and saw the approaching car in his rear vision mirror, and this caused his to turn his truck off the track. He gave a slow signal when he was about 60 feet west of Wabash. He was driving at a speed of about fifteen miles an hour until he began to turn off the track, when he slowed down to seven or eight miles an hour. He was turning off the track, headed southeast, when the streetcar collided with the 'rear end on the left-hand corner' of the truck with such force as to cause plaintiff to lose control of the steering wheel and the truck to continue in a southeasterly direction until the front end of the truck collided with an iron utility pole on the south side of Twelfth Street, about 15 or 20 feet west of the west curb of Wabash Avenue. Plaintiff was rendered unconscious by the collision. A more detailed statement of part of plaintiff's testimony is set forth below.

Plaintiff's Exhibits 4, 5, and 6 are photographs taken soon after the collision by Joseph W. Kilbain and Roy T. Wesley, Jr., police officers who investigated the accident. Exhibits 5 and 6 show the truck at rest, headed southeast, with its damaged front end against the utility pole on the south side of Twelfth Street, just west of Wabash. Kilbain, Wesley, and Orville J. Marshall, another police officer who investigated the accident, all testified as witnesses for plaintiff that Exhibits 5 and 6 correctly portray the location of the truck when they arrived at the scene of the accident. Exhibit 4 is a picture of the front and right side of the streetcar involved in the accident. This picture shows a three or four inch projection on the right-hand side of the street car (the south side as the car proceeded eastwardly), about 10 or 12 feet back of the front end of the car and immediately back of the right front door. This projection is due to the fact that the front part of the car (the vestibule) is about 3 or 4 inches narrower on each side than the rest of the car. Exhibit 4 shows marks on the front side of the projection. Plaintiff's witness Wesley testified that the 'damaged portion of the streetcar' was 'on the corner, behind the front doors.' Plaintiff's witness Kilbain testified that 'the front end of the streetcar itself, the extreme front part, showed no damage at all'; but that the front side of the projection mentioned above was damaged.

Plaintiff's witness Jesse J. Smart, a passenger seated on the north side of the streetcar, testified that when he first saw the truck it was on the track ahead of the streetcar; and that the driver of the truck was turning off the track and gradually easing to the right when the projection on the right side of the streetcar struck the left rear of the truck and it 'lunged' into a pole. Mrs. Dorothy Parks, another passenger seated on the north side of the streetcar, testified for plaintiff that she did not see the truck before the collision; that she felt a slight bump or jar when the collision occurred and that the impact was 'toward the front of the streetcar * * * forward of the center,' but that she did not know the exact point of impact. The testimony of Mrs. Herman Francis was substantially the same as that of Mrs. Parks. Plaintiff's witness Nettie Moore testified that she did not see the collision, but that she arrived at the scene of the accident immediately after the collision and that she saw green and yellow paint from the streetcar on the 'leftside--the left rear side' of the truck.

As to the defendant's evidence, we quote from the defendant's brief: 'Defendant's witnesses testified that after plaintiff turned his truck into Twelfth Street he drove it to the right of the south streetcar rail, between the streetcar rail and the south curb, in his own proper lane and clear of the streetcar. The streetcar and the truck were both moving at a speed of from 10 to 15 miles an hour. The truck driver gave a 'slow' sign; the truck slowed down and as the streetcar was overtaking and passing it, the truck swerved over to its left and the driver of the truck then turned his wheel to the right and the back end of the truck then struck the right-hand side of the streetcar about 10 to 12 feet back of the front end of the car.' Defendant's evidence also showed that the collision occurred about 40 feet west of Wabash Avenue when the front end of the streetcar was about even with the front end of the truck.

Defendant's first point is that the trial court erred in refusing to sustain defendant's motions for a directed verdict and for judgment. Defendant's argument is as follows: Plaintiff's Exhibit 6, a picture of the rear of the truck, shows that the back of the truck extends beyond the rear wheels. If the truck was turned to the southeast at the time of the collision, with the left rear wheel still on the track, as plaintiff testified (according to defendant), then 'it follows * * * that some portion of the truck extended to, or to the north of the south streetcar rail * * * and * * * it is a certainty that if plaintiff's truck was in the position described by him and was struck by a streetcar, it could only have been struck by the front end of the streetcar.' Defendant contends that the physical facts established by plaintiff's evidence show that this did not happen. In this connection, defendant points to the testimony of the police officers who testified that there was no damage to the front end of the streetcar. Defendant says that Exhibit 6 shows no damage to the rear end of the truck, and points out that not a single witness for plaintiff testified that there was any damage to the rear of the truck. It follows, according to defendant, that the front end of the streetcar did not collide with the rear end of the truck, because it is inconceivable that a collision could occur between the front end of a streetcar moving 15 miles an hour and the rear end of a truck moving 7 or 8 miles an hour without resulting in some visible damage to the front end of the street car and the rear end of the truck. Defendant then declares that the 'physical evidence proving the impossibility of the collision described by plaintiff was brought in by him. He is bound by it.'

The foregoing argument is based on two propositions: (1) that plaintiff testified that the left rear wheel of his truck was on the south rail of the streetcar track or that the rear wheels were straddling the south rail at the time of the collision, and that he is conclusively bound by such testimony, and (2) that the physical facts developed by plaintiff in his case proved that the collision could not have occurred in the manner described by plaintiff in his own testimony. If the first proposition is not supported by the law and the evidence, then all of the above mentioned argument must fail. As to the law involved in defendant's first proposition, the courts of this state draw a distinction between the testimony of a party and that of a witness who is not a party in the case. A party is not conclusively bound by the adverse testimony of his witness, and he may, by other witnesses, or by his own testimony, show that the facts are otherwise than as stated by such witness. Talley v. Buchanan, 353 Mo. 912, 917, 185 S.W.2d 23, 26. But a party's testimony on the stand as a witness may be of such a nature as to have the effect of a judicial admission which not only relieves the opponent from adducing evidence, but precludes the party himself from disputing it, either by his own testimony or by other witnesses. Wigmore, Evidence, sec. 2495a (3d Ed.). Thus, if a party in full possession of his mental faculties testifies unequivocally and understandingly to a material fact peculiarly within his own...