Danzo v. Humfeld
| Decision Date | 02 May 1944 |
| Docket Number | No. 38783.,38783. |
| Citation | 180 S.W.2d 722 |
| Parties | DANZO v. HUMFELD et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Brown Harris, Judge.
Action by James Danzo against Mrs. E. A. Humfeld and another for injuries sustained by plaintiff when struck by named defendant's automobile. Judgment for defendants, and plaintiff appeals.
Affirmed.
Carl Borello, Cowgill & Popham, and Sam Mandell, all of Kansas City, for appellant.
Warrick, Koontz, Hazard & Shannon, for respondent Mrs. E. A. Humfeld.
Clay C. Rogers and Mosman, Rogers, Bell & Conard, all of Kansas City, for respondent Kansas City Coca Cola Bottling Co.
VAN OSDOL, Commissioner.
Action to recover $35,000 for personal injuries. At defendants' request the trial court gave peremptory instructions directing a verdict for defendants. Judgment was rendered upon the verdict so directed from which plaintiff appeals.
It is necessary that the evidence should be reviewed from the viewpoint most favorable to plaintiff.
Plaintiff (a pedestrian) was injured on Troost Avenue, a heavily traveled street of Kansas City. Troost Avenue runs north and south and is intersected by 43d and 44th Streets; between its intersections with these streets, Troost Avenue is 60 feet in width and is traversed by streetcar tracks; the east curb is 20 feet from the east streetcar track; plaintiff at the times herein related had for twenty-two years conducted a grocery store fronting upon the east side of Troost Avenue between the intersections. The center of his store front was 37½ feet north of the north sidewalk line of 44th Street.
In the afternoon, about 1:30, of the day plaintiff sustained his injury, "the weather was clear, but it was bad underfoot," plaintiff's two Ford delivery trucks with closed-in bodies were parked at and parallel to the curb in front of his store, and defendant Coca-Cola Company's truck was "double-parked" headed northwardly with its hood about even with the door of the cab of plaintiff's truck (the north one) and a foot or eighteen inches from it, and had been so double-parked for ten or fifteen minutes while its driver was making deliveries to three customers of the neighborhood. Plaintiff, desiring to go on a business errand to his bank on Troost Avenue between 46th and 47th Streets (to the southward), got into his delivery truck (the north one); but, his free passage being interfered with by the Coca-Cola truck and, observing a streetcar approaching from the north at the intersection of 43d Street and Troost Avenue, plaintiff decided to board the streetcar at the intersection of 44th and Troost. He got out of his truck, stepped along to the westward in front of the Coca-Cola truck, moved into the street beyond and was struck and injured by the right front fender of defendant Humfeld's enclosed (florists' delivery) truck which was traveling northwardly at a rate of fifteen or twenty miles an hour, its right side passing "about a foot or foot and a half" from the left side of the Coca-Cola truck. Plaintiff heard no horn or other warning.
The Coca-Cola truck which was involved is twenty-four feet in length; seven feet, seven inches in width, measured from the outside of the rear fenders; its cab is six feet, eight inches in height; and the hood in front is fifty-seven and a half inches high. The width of the cab at the cowl is four feet; the bed (or rack) extends eleven inches beyond the side of the cab; the rear fenders extend five and a half inches beyond the bed; and the truck is seventy-three inches wide measured between the outside of the front fenders, which are forty-four and a half inches high.
Plaintiff is of rather small stature, five feet, one inch in height, and his step is about two feet in length. It is doubtful that his line of vision cleared the top of the hood of the Coca-Cola truck until he had passed to the westward of the center of the front of it.
Plaintiff alleged specific negligence of defendant Humfeld's driver in that he drove at a high, dangerous and excessive rate of speed; failed to swerve the truck to the left after he saw or could have seen plaintiff; failed to sound a signal of the approach and movement of the truck; and that he negligently failed to stop, slacken the speed of, or swerve the truck so as to prevent it from striking the plaintiff after plaintiff came into a position of peril. Plaintiff alleged that the Coca-Cola truck obstructed the view and passage of pedestrians attempting to walk westwardly in and across Troost Avenue and alleged specific negligence of the Coca-Cola Company, defendant, in that it failed to park its truck with its right side as near as practicable to the right-hand curb of Troost Avenue in violation of Subsection (a), Section 8385, R.S.1939, Mo.R.S. A. § 8385(a); failed to park the truck with its curb-side wheels within six inches of the east edge of Troost Avenue in violation of Paragraph a, Section 33, of City Ordinance No. 2031 of Kansas City as revised by Ordinance No. 2260; that it parked its truck on the roadway side of a vehicle parked at the right-hand edge of a street in violation of Paragraph 11 of Section 22 of Ordinance No. 2031 of Kansas City; and that, by thus parking its truck, defendant Coca-Cola Company negligently created a dangerous hazard and obstruction, making the use of the street dangerous, hazardous and not reasonably safe.
The separate answers of defendants pleaded contributory negligence of plaintiff specifically inter alia in failing to look to the south for northbound traffic as he passed in front of and beyond the Coca-Cola truck.
Errors of the trial court are assigned in holding that plaintiff made no submissible case against defendants.
Plaintiff (appellant) and defendant (respondent) Coca-Cola Company contend upon the questions whether the statute and the ordinances, the violation of which is specifically pleaded by plaintiff, were enacted for the protection of all who use the highways including the class of persons to which plaintiff (a pedestrian) belongs; whether it was negligent, independent of the statute and ordinances pleaded, to park defendant Coca-Cola Company's truck upon the street; and whether the parking of the truck was a proximate cause of plaintiff's injury. Plaintiff and defendant (respondent) Humfeld contend upon the question of whether plaintiff made a submissible case against defendant Humfeld. It is the contention of both defendants that plaintiff, under the facts, must be considered to have been guilty of contributory negligence as a matter of law.
A consideration of the contentions of the parties upon the charges of defendants' primary negligence appears to be unnecessary to a...
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