Chambers v. Kansas City
| Decision Date | 13 October 1969 |
| Docket Number | No. 1,No. 54113,54113,1 |
| Parties | Alton M. CHAMBERS, Respondent, v. City of KANSAS CITY, Missouri, a Chartered Municipal Corporation, Appellant |
| Court | Missouri Supreme Court |
Albert J. Yonke, Kansas City, for plaintiff-respondent.
Herbert C. Hoffman, City Counselor, Dan G. Jackson, III, City Counselor, Kansas City, for defendant-appellant.
HENRY I. EAGER, Special Commissioner.
This is a suit for personal injuries allegedly caused by the negligence of the City of Kansas City in permitting the existence of and failing to repair a hole in the street on Troost Avenue between 12th and 13th Streets. The injury occurred on May 9, 1960, somewhere around 8 a.m. Suit was filed on October 4, 1961. There is no explanation in the record to show why trial was delayed until April 22, 1968. The jury returned a verdict for plaintiff in the sum of $49,450.00, judgment was entered thereon, and defendant's after-trial motions were overruled. It then appealed.
Plaintiff was employed as a truck driver for Consolidated Food Company; he had been so engaged for that employer and a predecessor for approximately 18 years. It was his duty to drive to the different locations in and near Kansas City where deliveries of groceries in wholesale quantities were to be made. He apparently drove different trucks at different times. He did not load the trucks. On this day he was driving a 2-Ton Van Type Chevrolet truck with groceries loaded in different piles for separate deliveries, and as he said, 'loaded high and heavy' so as to be 'top-heavy.' Because of plaintiff's seniority he had some choice of routes and trucks; he had driven this truck about 2 weeks previously and had reported that its brakes grabbed; he testified that they had been repaired. On this morning, before he started from the warehouse in North Kansas City, he had checked the tires and tested the brakes by driving at a speed of ten miles an hour and trying them out; he said that they then worked perfectly. On the route from the warehouse to the place of this occurrence he made such stops as were made necessary by traffic lights and had no difficulty. He turned right (south) into Troost from 12th Street, after stopping for a red light, and proceeded at about 20 miles an hour. The street is not adequately described in the record, but there were two sets of streetcar rails, apparently unused, and a full traffic lane on each side of the rails. Plaintiff drove with his right wheels outside the westernmost rail and his left wheels between the southbound rails. There were no cars to his right; there was traffic moving ahead of him, about 4 car lengths distant, and considerable traffic coming towards him (north) with most of those cars 'straddle the east car track.' There was a traffic light at 13th Street, and in the course of traveling the block he saw children on the northwest corner of that intersection (on his right). He testified: that he was watching the light, the children, and the traffic coming toward him; that as he neared 13th Street he saw a hole in the pavement about 20 feet in front of his truck; that he applied the brakes as soon as he could, but that they did not take effect until his right front wheel had hit the hole. By photographs and testimony (the photos being taken by the Kansas City Police) the hole appears to have been a rather long, irregular rut, 3 feet or more long, probably 3 inches deep and about 10--11 inches wide at its widest places; plaintiff thought it was about 5 feet long. The west edge of the hole was most irregular, having the appearance of worn, eroded or weathered asphalt from the photographs. Plaintiff testified that he had not driven on that part of Troost within the past 6 months.
In any event, the right front wheel of plaintiff's truck struck the hole, his load of groceries 'shifted' toward the right front corner of the truck, and he pulled the wheels to the left, but the wheel 'didn't want to come out.' We need not relate his testimony of all the other efforts and movements, but the truck, with the brakes on, swung over to the right, hit the curbing, turned over on its side, and threw the plaintiff out on the pavement; the truck landed on him and it is indicated that he was saved from even more serious injuries by the curbing. After considerable time he was extricated by firemen who jacked up the truck, after it had fallen back on him once when a jack slipped. Plaintiff testified that he had seen loads shift before in similar trucks when there was a quick jerk.
There is considerable controversy concerning the testimony of Ben Poisner, a registered engineer practicing his profession in Kansas City, Missouri. He was a graduate chemical engineer, but for 43 years had been engaged in various phases of engineering work, including the testing and inspection of paving materials; he was a member of various engineering organizations, some of which were concerned particularly with the testing of construction materials; he was and had long been the manager of 'General Testing Laboratories' in Kansas City, principally concerned with testing the strength of construction materials. There can be no question about his qualification as an expert. He testified in substance: that for years he had tested materials used in the street surfaces in Kansas City, and had been familiar with the specifications or requirements of Kansas City for such materials; that the two principal surfacing materials used were Portland Cement concrete and asphaltic concrete, and he gave the component parts of each with the variations used; that the Portland Cement concrete is much tougher and stronger and lasts longer; that he had examined Exhibits 6A and 7A which were two photographs of the hole here in question; that the area immediately outside the streetcar rail (and up to the edge of the hole) was Portland Cement concrete and the remainder of the paving was asphaltic concrete; that he could form certain opinions fron the photographs; that this hole was not cut by tools, but was formed by erosion due to the breaking down of the asphaltic concrete, which in turn was due to 'weathering' and the deterioration caused by traffic; that the asphalt is softer and breaks down much more readily, but that he also saw evidence of wear on the edge of the Portland Cement concrete slab which takes 'quite a little time'; that he did have an opinion as to how long the hole had been there and that from the appearance of the polished areas along the slab and the broken sections of the asphaltic concrete, it was his opinion that the hole had been there not less than 3 or 4 weeks. Defendant objected to such testimony on the ground that 'no scientific result' could be obtained from the pictures according to Mr. Poisner's own testimony. This was overruled, the court noting that he was merely giving an expert opinion. The witness further testified on cross-examination that there was a tendency for the wheels of traffic to drop off of the slab and break down the asphalt. This witness had not seen the hole itself, for the trial came about 8 years after the accident.
Other photographs showed curved skid marks leading to the overturned truck, one starting at the hole. There was evidence from an officer in the traffic division of the police department: that at 20 miles an hour the truck would travel 29.4 feet per second and should be stopped in 44.5 feet plus reaction time; that in the reaction time of three fourths of a second it would travel approximately 22 feet; that the time for swerving would be somewhat less, perhaps a total of 38.6 feet.
We shall not relate the medical testimony in detail, for the defendant has made no point in its brief on excessiveness. There was very substantial medical testimony, and it is clear that plaintiff suffered the following injuries and disabilities: His pelvis was fractured in two places on the right side; his collarbone (right) was fractured; two ribs were fractured; the urinary bladder was ruptured at the lower end (probably caused by the fracture of the pelvis) and the urethra was completely severed at a point a short distance from the exit from the bladder. These ruptures were discovered by sundry tests soon after plaintiff entered the hospital, when the leakage of urine into the tissues created a very serious condition. An operation was performed promptly, the bladder repaired, the urethra sewed together over a catheter and tubes inserted in the bladder for drainage. Plaintiff also developed phlebitis in both legs, from which he apparently recovered; he was fed intravenously and he was given 5 blood transfusions during his 30 or 31 days in the hospital. The injury to and operation on the urethra has left a scarring and constriction, with the result that about every three months he must undergo a dilation, performed by running instruments entirely up through the urethra and into the bladder. This condition is said to be permanent. Plaintiff had considerable arthritis of the spine which was said to have been aggravated by the injury. There was some evidence concerning a possible disc injury, but it was very vague and we need not consider it. Plaintiff testified that he still has trouble with his low back and with his shoulder more or less continuously, and with his legs much of the time; he went back to work about the last of September, 1960, first as a driver for the same employer with 'lighter loads,' and later for Isis Foods as an order filler in the warehouse; there he lifts groceries on to and off of a hand truck, and in addition, has charge of the 'spice room,' which is a lighter form of work. He actually receives more in pay than he did before his injury bacause of advances in the hourly union scale. He says, however, that he is continuously inconvenienced by his condition.
Defendant produced evidence to show that plaintiff had done his...
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