Drake v. Thym

• Decision Date: 25 May 1936
• Docket Number: No. 18628.,18628.
• Citation: 97 S.W.2d 128
• Parties: A.F. DRAKE, RESPONDENT, v. HERMAN H. THYM, APPELLANT.
• Court: Missouri Court of Appeals

97 S.W.2d 128

A.F. DRAKE, RESPONDENT, v. HERMAN H. THYM, APPELLANT.

No. 18628.

Kansas City Court of Appeals. Missouri.

May 25, 1936.

Appeal from the Circuit Court of Jackson County. — Hon. Daniel E. Bird, Judge.

AFFIRMED.

Philip L. Levi, Trusty & Pugh and Guy W. Green, Jr., for respondent.

Langworthy, Spencer, Terrell & Matz for appellant.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $4000 and defendant has appealed.

The facts show that plaintiff was injured about 9.30 P.M. on January 30, 1934, in a collision between a motorcycle on which he was riding and an automobile being driven by the defendant. The collision occurred on Troost Avenue, in Kansas City, and at a point about 120 to 125 feet north of the intersection of that avenue with 51st Street. It took place near the east curb of Troost Avenue where the curb is interrupted for a driveway leading into a garage on that side of the avenue. Troost Avenue is one of the main thoroughfares of Kansas City and extends north and south. It is about sixty feet wide and has in its center two sets of street car tracks, one on the west side for southbound street cars and one on the east side for northbound cars. It is nineteen and six-tenths feet between the curb on the east side of the avenue and the first rail of the street car tracks. The entrance to the garage is thirty-nine and ten-hundredths feet wide, the curb of the avenue being interrupted for that distance. The pavement to the entrance to the garage joins the pavement of the avenue at the gutter of the latter. The grade of Troost Avenue is downward toward the north from 51st Street.

At the time of the collision plaintiff was returning to a drug store, at which he was employed as a delivery boy, and was riding a motorcycle owned by himself. He was proceeding north along the east side of Troost Avenue. His brakes and headlight were in good condition. After crossing 51st Street he was traveling at a speed of about twenty-five miles per hour. He observed motor vehicles coming up the hill toward him and going south on the opposite side of the street and, particularly, a truck being driven on the west side of the street between the west curb of the avenue and the southbound street car tracks.

Plaintiff testified that when he first noticed the truck it was going, perhaps, fifteen miles per hour and was sixty-five to seventy feet from him and that the automobile, which afterwards turned out to be defendant's car, was behind the truck "maybe 10 car lengths;" that defendant was gaining on the truck, was a little bit east of it with his wheels "straddling the west rail of the southbound car track." "As we approached each other this car behind the truck swerved to the east, to his left," as if to go around the track and pass it. But instead of going around the truck defendant's car continued to swerve to the east and come diagonally across the street "straight for me." "As soon as I saw what was happening, I swerved to my right, that is to the east as far as I could and tried to get out of the way to avoid an accident. I put on the brakes at the last minute, maybe instantly to keep from going over the curb, and we (plaintiff and his motorcycle) were hit. That is about all I remember of it." When plaintiff first became aware that defendant was going to cross in front of him defendant was about twenty-five feet north of the plaintiff and about six feet west and plaintiff was driving northward about two feet east of the eastern-most street car rail. Plaintiff at that time was traveling about twenty miles per hour and defendant about twenty to twenty-five miles per hour. Plaintiff swerved to the right and applied his brakes. The two vehicles collided, the left front wheel and fender of defendant's car striking plaintiff and his motorcycle a little forward of the center of the left side of the latter. At the point of the collision defendant's left front wheel was about five feet out from the east curb line of Troost Avenue, if the curb had been extended, and in such a position with respect to the driveway, leading into the garage, that the car would have gone directly into the driveway.

On cross-examination plaintiff testified that defendant's car was sixty to seventy feet north of the center of the garage doors when he first saw it; that at that time the witness was from thirty-five to fifty feet south of the south edge of the driveway leading into the garage; that when the witness first noticed that defendant's car was going to turn across the street it was pointed in a southeasterly direction and crossing the pavement between the two sets of car tracks, possibly a little east of that point and about ten feet north of the north edge of the driveway; that at this time the witness was about fifteen to twenty feet south of the north edge of the driveway; that the collision occurred at a point on the north edge of the driveway, that is to say, where the curb of the street ended and the driveway started; that at the moment of the impact the defendant's car was headed in a southeasterly direction but more to the east than to the south.

Without referring to the place or to the circumstances of the collision, plaintiff was asked on cross-examination, in what distance he could stop, with his light on, going at the rate of twenty miles per hour. He testified that he had never tried it but that he thought "may be 15 feet" but he could not definitely say.

As a result of the collision plaintiff was thrown forward over the wind-brake of his motorcycle and landed on the parkway north of the collision. He was rendered unconscious and was carried into the garage by two men.

The undisputed testimony shows that defendant did not give any warning of his intention to turn to cross the street in order to go into the garage. He testified that he did not recall driving behind the truck; that he proceeded south on the west side of Troost Avenue at a rate of speed of about twenty miles per hour, driving astride the east rail of the southbound track; that when he arrived at a place directly west of a point about ten feet north of the north boundary of the entrance to the garage he slowed up his car to ten or fifteen miles per hour and shifted into second gear, looked behind and in front for pedestrians and, just as his front wheels were on the beginning of the incline to the driveway, a motorcycle appeared about nine or ten feet away toward the south and about a foot and a half from the curb; that he immediately applied his brakes and stopped his car; that the motorcycle struck his car on the left rear wheel and fender; that he gave no warning that he was going to turn and proceeded at the same rate of speed until the time of the collision; that going at the rate of ten or fifteen miles per hour he could have stopped his car within two or three feet; that the headlights on his car were in good condition and cast a beam in front thereof for a distance of 120 feet; that "there is a lot of light up there in the driveway;" that the collision occurred about two feet south of the north side of the driveway and that, at that time, his car was proceeding toward the southeast "at an angle;" that he stopped his car within two or three feet after seeing plaintiff; that the motorcycle was also "angling."

It is insisted by the defendant that the court erred in refusing his instruction in the nature of a demurrer to the evidence, for the reason it is claimed that plaintiff was guilty of contributory negligence as a matter of law. It is so contended because plaintiff testified that he was driving at the rate of speed of twenty miles per hour and that he could have stopped his motorcycle in fifteen feet at the time defendant's car was twenty-five feet from him; that instead of stopping he turned his motorcycle to the right before attempting to stop. As the two vehicles were approaching each other, of course, plaintiff did not have twenty-five feet in which to stop.

There is really no evidence that plaintiff could have stopped, under all of the circumstances of this case, within fifteen feet. In addition to this his own testimony that he could have stopped within that distance under ordinary circumstances, was only an estimate. However, assuming that plaintiff could have stopped within fifteen feet, under the circumstances, still he could not be convicted of contributory negligence, as a matter of law, because he used the means he selected, under the circumstances, in an effort to avoid a collision. He testified that defendant's car turned suddenly in front of him and frightened him. It is stated in King v. Friederich, 43 S.W. (2d) 840, 841: "Being confronted with a sudden peril of defendant's making, with but scant time at best to determine what course to pursue, he is not to be convicted of contributory negligence as a matter of law, even if it be thought that he erred in judgment, providing he exercised (as he undoubtedly did) what might reasonably be denominated due care in the stress of circumstances to avoid an accident."

In addition to this, defendant does not contend that plaintiff failed to make out a case under the humanitarian doctrine, and if plaintiff did so the demurrer to the evidence was properly overruled.

However, it is claimed that plaintiff's testimony is contrary to physical laws, in that, it was "impossible for defendant's left wheel to have struck the center of plaintiff's motorcycle in the manner testified to by plaintiff. Plaintiff stated that he was traveling twenty miles per hour, defendant twenty-five miles per hour." It is not clearly pointed out by defendant why it was impossible for the collision to have occurred as plaintiff testified. Later on in his brief defendant says it was impossible for the motorcycle to have been struck by defendant's left front wheel because the vehicles were traveling practically parallel to each other; that "...