Davis v. Kansas City Public Service Co.
| Decision Date | 22 June 1949 |
| Docket Number | 21184 |
| Citation | 223 S.W.2d 1 |
| Parties | DAVIS v. KANSAS CITY PUBLIC SERVICE CO |
| Court | Kansas Court of Appeals |
Not to be published in State Reports.
Homer Cope, Kansas City, Walter A. Raymond, Kansas City, for appellant.
Charles L. Carr, Kansas City, William A. Kitchen, Kansas City, Alvin C. Trippe, Kansas City, Hale Houts, Kansas City, Hogsett Trippe, Depping, Houts & James, Kansas City, for respondent.
This is an action by the plaintiff to recover for personal injuries and damages to his automobile alleged to have been caused in a collision with one of defendant's streetcars. The verdict and judgment were for plaintiff in the sum of $ 5,500. The defendant's motion for new trial was sustained on the grounds of 'misconduct of juror and error in instructions'. From this order the plaintiff has appealed.
In substance the petition alleges that on October 22, 1944, at about 6:00 p. m., plaintiff was driving his Chevrolet automobile in a northerly direction on Swope Parkway in Kansas City, Missouri, to the right of and alongside the northbound tracks of the defendant company, and that when plaintiff reached 59th Street, an east and west street intersecting said boulevard, he turned to the left, and while crossing the defendant's northbound track one of defendant's streetcars, likewise going in a northerly direction, was negligently and carelessly operated and controlled as to be caused and permitted to run into and violently collide with plaintiff's automobile, damaging the same, and causing the plaintiff to receive the personal injuries described. Of the various specifications of negligence alleged, only that purporting to constitute the humanitarian theory was submitted. As to that specification of negligence it was alleged that defendant negligently operated the streetcar so that it collided with plaintiff's automobile after the defendant's servant and employee, in control thereof, saw, or by the exercise of ordinary care could have seen, plaintiff's automobile in a position of imminent peril and danger of being struck by said streetcar, and that said servant and employee, in sufficient time thereafter, by the exercise of ordinary care and by the use of the means and appliances at hand, with safety to himself and passengers and to the streetcar, could have slackened the speed of the streetcar or sounded a warning of the approach and movements of the same, or stopped the streetcar and thus have avoided running into and colliding with plaintiff's automobile. The petition alleged the total loss of the automobile of the reasonable market value of $ 1000, and prayed for damages for personal injuries in the sum of $ 20,000, plus $ 1000 for said property loss.
By its answer the defendant attributed the collision to the sole negligence of the plaintiff in that he failed to keep a vigilant and careful lookout; failed to give warning of his intention to make a left-hand turn; that he drove at an excessive rate of speed at the time in question; that he failed to have his automobile under control so as to bring it to a safe stop and avoid the collision with the streetcar and that he failed to use the highest degree of care to extricate himself from a position of imminent peril when he could have seen defendant's streetcar in time to have stopped his automobile or slackened the speed thereof, and to have avoided the collision.
According to the evidence Swope Parkway in Kansas City, Missouri, is a boulevard running, at all points in question, north and south and the thoroughfare for northbound traffic is divided from that provided for southbound traffic by a parkway on which is located the northbound and southbound tracks provided for the defendant's streetcars. Fifty-ninth Street runs east and west, and intersects Swope Parkway at right angles. The west line of the northbound roadway of the boulevard is 14 feet east of the center of the northbound streetcar track as it crosses 59th Street. As the boulevard approaches 59th Street from the south, there is a slight downgrade. Fifty-ninth Street is 30 feet wide from curb to curb. West of both streetcar tracks and on the north side of 59th Street there was a slow sign for westbound traffic.
The accident in question happened on Sunday, October 22, 1944, at about 6:00 p. m. The day was clear and dry. The streetcar in question was of the 1100 type, equipped with air brakes and they were in good condition. The operator had been operating streetcars 'on his own' for about two weeks. He had loaded his streetcar at Swope Park and was not taking on any additional passengers after leaving the park, although several stops had been made to permit passengers to alight. Plaintiff, in his automobile, had headed north on the northbound roadway of Swope Parkway, intending to assist his passenger, a friend, to catch the streetcar. When the plaintiff observed that the streetcar was not permitting any additional passengers to come aboard at the various stops, he drove on northward on the boulevard toward 59th Street intending to turn west at 59th Street and to Prospect Avenue where his friend could catch a bus. Several people were waiting at the usual loading zone on the south side of 59th Street to board a northbound streetcar. A southbound streetcar had stopped on the south side of 59th Street and several passengers were alighting therefrom.
According to plaintiff's evidence he looked back when he reached a point 40 feet south of the south curb of 59th Street and saw the defendant's streetcar approaching about 250 to 300 feet distant. Plaintiff was then traveling 25 miles an hour and slowed down to 10 miles an hour as he made the turn. He put out his left arm to indicate a left turn, and turned west on 59th Street, and when the front wheels of his automobile reached the east rail of defendant's northbound track, he again looked and the streetcar was about 100 feet south of the intersection. The plaintiff then turned his attention to the people leaving the southbound streetcar and slackened his speed somewhat. There was evidence that the distance of the streetcar from the plaintiff's automobile when he made the turn was 150 feet, and some witnesses testified that when plaintiff's automobile reached the track the streetcar was 100 to 150 feet distant. There was also evidence that the streetcar approached the intersection at 20 to 40 miles an hour, and neither slackened its speed before the collision nor sounded any warning. Some witnesses testified that the plaintiff's automobile, when hit by the streetcar was moving two or three miles an hour, and had not come to a complete stop. The plaintiff testified that after looking at the streetcar the last time, he saw a boy walking from the southbound streetcar loading zone into the intersection, and that plaintiff's attention was then directed solely toward the traffic ahead of him. Before the plaintiff's automobile had quite cleared the northbound track, the streetcar ran into the rear left part of the automobile with such force that it pushed the automobile northwardly beyond the north curbline of 59th Street and into a pole, where it came to a dead stop. The automobile was badly damaged, and the plaintiff was thrown with violence to the pavement, and was rendered unconscious.
On the part of the defendant, its operator testified that he was slackening the speed of his streetcar as he approached the intersection, constantly sounding his bell as an indication that he was not going to make the stop to pick up waiting passengers at 59th Street, but intended to pass up that stopping point. There were other witnesses for the defendant who testified to the sounding of the bell. The operator said that about the middle of the block south of 59th Street, the plaintiff passed the streetcar and when the streetcar was about 25 or 30 feet south of the south line of 59th Street, the plaintiff 'cut in' in front of the streetcar at 59th Street, without giving any signal. He testified that at a speed of 18 miles an hour, under the conditions there existing, he could have stopped the streetcar with safety within 35 to 40 feet; at 25 miles an hour, within 50 to 55 feet; at 25 miles an hour, within 65 to 67 feet; at 30 miles an hour, within 75 to 85 feet, all including reaction time. The operator applied the emergency brake promptly when the plaintiff turned westward, and cut down the speed of 22 miles an hour by 9 or 10 miles an hour. The streetcar ran about a block after the collision. The operator testified that after the collision he released the brakes and purposely allowed the streetcar to run a short distance before coming to a complete stop, inasmuch as the wheels were sliding.
There was voluminous testimony regarding plaintiff's personal injuries concerning which issue no point is made here on appeal.
In regard to the automobile the plaintiff testified that it was a 2-door 1940 Chevrolet and had a value of $ 975, according to OPA ceiling; that it was in perfect condition and would have been appraised at the full OPA price, although that was not the price that he would have obtained for it if sold in violation of the law. On cross-examination he admitted that he paid $ 600 for it. There was evidence that the salvage was worth $ 50. In this connection, plaintiff called a witness who had sold the automobile to him and was familiar with its condition and value before and after the accident, and who testified that it was worth $ 900 or $ 1,000 on the day of the accident, and that after the accident it was worth only $ 50.
When the plaintiff rested his case, defendant moved for a directed verdict and its motion was overruled. Upon the close of all the testimony of the case, the defendant again moved for a directed verdict, which was...
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