Corn v. Kansas C. C. & St. J. Ry.

• Court: Missouri Supreme Court
• Writing for the Court: Small
• Citation: Corn v. Kansas C. C. & St. J. Ry., 228 S.W. 78 (Mo. 1920)
• Decision Date: 30 December 1920
• Docket Number: No. 21697.,21697.
• Parties: CORN v. KANSAS C. C. & ST. J. RY. CO.

228 S.W. 78

CORN v. KANSAS C. C. & ST. J. RY. CO.

No. 21697.

Supreme Court of Missouri, Division No.

December 30, 1920.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Arra Corn against the Kansas City, Clay County & St. Joseph Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

John E. Dolman and Sam Wilcox, both of St. Joseph, for appellant.

Grover C. Sparks, of Savannah, and Duvall & Boyd, of St. Joseph, for respondent.

SMALL, C. I.

Personal injury suit arising from collision between an automobile in which plaintiff was riding and one of defendant's interurban cars at the intersection of Fourth and Francis streets in the city of St. Joseph.

The accident happened on July 8, 1917, in the daytime. The plaintiff and her husband, I. C. Corn, resided at Nodaway, some 15 miles north of St. Joseph. On the day of the accident, the plaintiff, her husband, and her daughter, Mrs. Norris, drove in an automobile from their home to the Union Station, St. Joseph, to meet another daughter, Mrs. Ebersole, who was to arrive there from Colorado. The automobile belonged to the husband. In leaving the station and driving north on Fourth street until they reached Francis street and until the accident occurred, Mr. Corn sat in the front seat at the wheel and drove the car. During all this time the three women sat in the rear seat, Mrs. Corn in the middle, holding her six weeks old granddaughter, the child of Mrs. Norris.

Fourth street runs north and south, and Francis street east and west. Both are much traveled. Francis street for a block east of Fourth street is practically level, having a grade of not over 1 per cent. It is 50 feet wide between the property lines and 29 feet from curb to curb. For a block south of Francis street Fourth street has an ascending grade going north of 7.23 per cent. At Francis street Fourth street is 56 feet and 10 inches wide between the property lines.

Plaintiff's evidence tended to show that the automobile was being driven by her husband about 8 miles an hour in the center of Fourth street as it approached Francis street, and before reaching the intersection he sounded the automobile horn. When the front end of the automobile was 5 or 6 feet south of the defendant's tracks, which ran east and west in the center of Francis street, Mr. Corn suddenly swerved the automobile to the west, in an attempt to go west on Francis street and avoid a collision with defendant's interurban electric car, which was approaching from the east and going west on said tracks in Francis street. In making said turn, the automobile got on the tracks on which the electric car was running and was struck by said electric car about the right rear wheel and fender and thrown across Francis street and set upon the sidewalk at the northeast corner of Fourth and Francis streets, the front end headed east or southeast. The headlight of the automobile by the impact was torn loose and fell upon the plaintiff. The rear wheels of the automobiles were crushed and broken, the right fender driven in, and a dent was made in the right side of the body.

Plaintiff's evidence further tended to show that the electric car weighed 42 tons, and approached Fourth street at the rate of from 20 to 25 miles her hour, without sounding any gong or warning of its approach until the instant of the collision, and the motorman had his head turned towards the north at the time the front end of his car was on the east property line of Fourth street. Ordinances of St. Joseph were introduced in evidence requiring the operators of such electric cars at such time and place to run them at not over 10 miles per hour, to ring a gong in quick succession on approaching such street crossing, and to keep a vigilant watch for all vehicles either on or running towards the car tracks.

When the electric car stopped, after the collision, which occurred near the center of Fourth street, its front end was west of the west line of Fourth street. From a point 12 feet and 7 inches east of the east property line of Fourth street and in the center of the car track an automobile could be seen on Fourth street 60 feet south of the south line of Francis street. From a point 6 feet east of the east property line of Fourth street, in the center of the car track, one could see a block south on Fourth street.

For 11 or 12 years before the accident plaintiff had ridden in an automobile driven by her husband. She knew him to be a careful driver and had every confidence in him; yet she was always watching and listening, not only for her own safety, but that of others as well.

As to her knowledge and conduct relating to the accident, plaintiff testified as follows: Did not notice whether husband made effort to put on brakes before he started across the tracks. First saw electric car when front end about even with building line on east side of Fourth street. Was afraid then there would be a collision. The motorman's head was turned, and she did not see how a collision could be avoided. She said nothing to her husband. She listened for the alarm as they came towards Francis street. She looked ahead and then west. Did not notice speed increased in going up Fourth street hill to Francis street. Said nothing to her husband then. When they reached the car tracks husband turned west to get out of the way of the electric car. The way she understood it, he was so close to the track that he made the turn, and that threw him on the track, and when the interurban struck them it threw them across the track. It struck rear end of automobile while it was on the track and before they could get off. She was familiar with Fourth street. Knew the railway track was on Francis street, and that it would be necessary for them to cross it. Did not know which way the cars ran. Did not look east until the last look, when it was too late. She was not driving and could not see the electric car until it was close to them. If she had been driving, perhaps, she could have seen the car sooner.

"Q. Mrs. Corn, if your car had attempted to turn west on Francis street after you, sitting in your automobile, reached a point past the corner of the building, where you had a clear view of the interurban car coming from the east, going at the rate of speed you say you were going, you could have turned with perfect safety at that point? A. I suppose I could if I had seen the car."

She relied on husband's ability to carry her over dangerous places. She took no precaution, only it was natural for her to watch and listen for alarms. In this case she relied implicity on her husband. "I didn't see danger in time. If I had been driving, I could have stopped it." She was watching, too, looked to the west, and when she looked to the east it was close, too late. To a certain extent she relied on husband. He was driving the car. She looked and listened for the alarm. She thought that if there was a car coming she would have heard the alarm. She looked north and west before she looked east; did not know why. It was too close to avoid a collision when she looked east. A little farther back when she looked west.

As to plaintiff's injuries, she testified:

"From Dr. Ballard's office I was taken to the Ensworth Hospital. I was there 12 days, I think. I suffered pain, suffer pain yet, continually, in different ways. I suffer in my back and hip and chest, and the nervousness is bad; seems like I don't rest from it at all. My knee is not lame, but sometimes my hip or back will give way with me, and I will strike it with my other knee, and it is painful; walking, going up steps, or anything like that, it bothers me. It is discolored; the veins or arteries are enlarged. A place about two inches in length, I think, on the inside of the knee is discolored. During the time I was in the hospital I was not able to turn myself in bed. I suffered a great deal of pain. 2 was in constant pain while at the hospital. I slept some; yes; didn't sleep soundly. At the end of 12 days I was taken in the ambulance to the Francis Street station, put on a cot, and taken in the baggage car to the depot at Nodaway, and from there was carried to the house on the cot. I was then confined to my bed; four weeks from the time I was hurt was helped in a chair; I sat up in bed with a prop to my back before that, but that was the first time I was put in a chair, about four weeks from the time of the accident. I don't know as 1 could say exactly how long it was before I could walk around unsupported. It was a long time. I walked with crutches for some time before I could get around. I don't know as I could state exactly how long I did use those crutches; three or four weeks. My hip has not entirely recovered. It aches; there is a continuous ache in my hip and hack. The injuries to my hip and back bother me a great deal, a pain or ache in my back, and lots of times at night it wakes me up, continuous ache in my back and hip; if I have some one help me to put hot water bottles to the parts that hurt, I sometimes get easier in a short time and get back to sleep. I can stoop, but, if I stay in a stooping position a few moments, it is almost impossible for me to raise myself up; seems to stiffen me or bother me in raising. I can't explain how, but it has affected my back in raising up that way; seems to be weak through my back and hips. The injury to my chest is painful to pressure, and if I take a little cold it bothers me a good deal; it is painful, or if I have the least cough or anything that way it bothers me in that chest or in that part. If I breathe deep I notice the pain, but unless I do I don't notice it so much in breathing. My nervous system since the injury has been very bad; seems like I can't get my mind on any fixed thing and accomplish anything. Take it from my Sunday School lesson. I was teacher of the Bible class, and I have never taught...