Ellis v. Kansas City Public Service Co.

• Decision Date: 05 May 1947
• Docket Number: No. 20715.,20715.
• Citation: 203 S.W.2d 475
• Parties: ELLIS v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

203 S.W.2d 475

ELLIS v. KANSAS CITY PUBLIC SERVICE CO.

No. 20715.

Kansas City Court of Appeals. Missouri.

May 5, 1947.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

"Not to be published in State Reports."

Action by J. E. Ellis against Kansas City Public Service Company, a corporation, for injuries and property damage arising out of a collision between plaintiff's truck and defendant's street car, wherein defendant counterclaimed for property damage. From a judgment for plaintiff on plaintiff's petition and defendant's counterclaim, defendant appeals.

Judgment affirmed.

Charles L. Carr, R. Carter Tucker, John Murphy and William H. Wilson, all of Kansas City, for appellant.

Sprinkle & Knowles, of Kansas City, for respondent.

DEW, Judge.

This is an action for damages coming to the writer on reassignment. Plaintiff sued for alleged personal and property damage. Defendant filed answer and a counterclaim for property damage arising out of the same action. Verdict and judgment were for the plaintiff on both his petition and on defendant's counterclaim, and plaintiff's damages assessed were: personal damages $6900, property damages $600, total $7500. Defendant has appealed.

The ground of negligence on which plaintiff's cause was submitted was the violation of certain sections of Ordinance of Kansas City, Missouri, No. 7100, — Section 11-48, to the effect that a driver of a vehicle approaching an intersection is required to yield the right of way to a vehicle already having entered that intersection, and that when two vehicles enter the intersection at the same time, the driver of the one on the left shall yield to the driver of the one on the right; and Section 11-38 to the effect that no person shall drive a vehicle or street car upon a street at a rate which is greater than is reasonable and prudent with due regard to the traffic, surface and width of the street and intersection hazards, and other conditions existing; and that every such driver shall exercise the highest degree of care particularly in driving at a speed so as not to endanger the life, limb, or property of any person. The latter section further provides that no such driver shall drive at a speed greater than will permit him to exercise proper control of the vehicle, and to decrease its speed or stop if necessary to avoid collision with any person, vehicle or other conveyance entering the highway in compliance with legal requirements; that it is the duty of the driver and operator and other persons using such highway to exercise due care; provided, in any civil action such ordinance shall not relieve the plaintiff of the burden of proving negligence on the part of defendant, and that the same is the proximate cause of the accident. Defendant also introduced Section 11-34 and Subsection B of the same ordinance, to the effect that when a street car has started to cross an intersection, no driver shall drive upon or across the car tracks within the intersection in front of the street car.

Defendant's answer denied all of the material facts alleged in plaintiff's petition here in controversy, pleaded contributory negligence on plaintiff's part as to excessive speed, operating the car carelessly in disregard of the safety of persons on the street car and of the defendant and its property, failure to exercise the highest degree of care, failure to stop or slacken his speed, or to swerve the truck to avoid the collision, failure to have his truck under reasonable control, and violation of Section 11-34 of the ordinance aforesaid in driving his truck into the intersection after the street car had started to cross the same.

For its counterclaim defendant adopted the allegations of its answer relative to violation of said Section 11-34 of the ordinance mentioned, and alleged that after said street car had entered the intersection, plaintiff negligently operated his truck so as to collide with the same; that plaintiff drove said truck at a high and dangerous rate of speed, failed to sound his horn or give warning of the approach of the truck; that plaintiff, by the exercise of the highest degree of care, could have seen the street car in a position of peril in time, by the exercise of the highest degree of care, to have avoided said collision. Defendant set forth the damages to its street car in the total sum of $73.65, for which it asked judgment.

Plaintiff's reply to defendant's answer and counterclaim, in effect, denied all new matters alleged.

To sustain plaintiff's petition there was evidence on his behalf tending to show that plaintiff, a farmer, living near Cleveland, Missouri, had been injured in 1939, when he was gored by a bull, and as a result of that incident, had been unable to return to his regular work of farming and operating a truck for nearly a year thereafter. He so far recovered from the injuries so sustained that by the date of the accident in question he was able to load and unload his truck and operate the same to and from the city daily, and put in long hours. He had practically recovered from all pain resulting from the prior injury. On November 30, 1943, in company with a neighbor, Mr. Sears, for whom he was hauling some cattle and hogs, he drove his truck to Kansas City. He was traveling on 30th Street going westward toward the intersection at Holmes Street, a north and south street, and as he neared the intersection, he was traveling five or six feet south of the north curb line of 30th Street. It was a bright day and the pavement was dry. His truck weighed 7000 pounds, and he had a load of about 6000 pounds. He was traveling not to exceed ten miles an hour. He was familiar with the corner, and knew that there was no stop sign either way, and that careful driving was necessary at that location. On the northeast corner of the intersection there is an apartment building, and a hedge between the building and Holmes Street. One sitting in the truck could see over the hedge without difficulty. On the southeast corner there is an apartment so close to Holmes Street that it obstructs the view to the south until the intersection is reached. As plaintiff approached Holmes Street he observed a street car approaching from the north about 150 feet from the intersection. At that time the front end of plaintiff's truck was 10 or 15 feet east of Holmes Street. Plaintiff did not attempt to gauge the speed of the street car, but knew that it stopped at 31st Street and he "didn't suppose" it was coming fast; he was so near the intersection he thought he had time to cross before the street car arrived, as long as it was almost half a block away. He did not turn his truck to the south. After plaintiff had first seen the street car he looked to the south as he entered the intersection and then back to the west, the direction in which he was driving. When he again looked to the north, the street car was right upon him. He judged the street car was then going at 25 miles an hour.

Plaintiff's evidence further tended to show that at the time of the impact between the street car and plaintiff's truck, the front wheels of the truck were west of the west rail of the tracks; in other words, west of the west rail of the southbound street car tracks. The truck was thrown to the left and headed south, and the street car went on by about 100 feet. The impact was on the front part of the truck. The cab of the truck was about the center between the rails, and the street car hit about the center of the cab. The truck was headed south after the accident, the front end being beyond the south curb line of 30th Street. When the truck was thrown around to the left, plaintiff's side and back were injured. Plaintiff alighted from the truck and the operator of the street car approached him and said: "I never did see you until I hit you. The sun blinded me, and I never did see you", which statement the operator repeated several times. Plaintiff told the operator that his side was hurt, that he did not believe it was serious, but that he did not know how badly Mr. Sears was injured. Plaintiff afterwards told the police officers that he did not think he was hurt seriously, and did not wish to be taken to a hospital. Plaintiff noticed that the right front of the street car had been dented, and glass was broken in the windows on the left side. It was admitted that Holmes Street is 41 feet wide, and 30th Street is 30 feet wide. The truck had not come in contact with any part of the left-hand side of the street car until after the street car hit the truck and knocked it around endwise. The street car then passed the standing truck on the latter's right. There were dents on both sides of the headlight in the front of the street car. The front of the truck was not damaged.

Plaintiff's evidence further tended to prove that following the accident plaintiff's side and back hurt him somewhat and he went to see a doctor that afternoon, where he was taped, and the next day he was sent to Research Hospital, where X-rays were taken. His body was kept taped for two or three weeks. Whenever plaintiff would take a deep breath he would experience great pain. He suffered especially when he was lying down, and it was necessary for him to sit up several nights. This condition lasted a week or ten days. In the meantime plaintiff stayed at 1625 Genesee in Kansas City, where the doctor attended him from time to time. Later plaintiff was able to go to the doctor's office. He saw the doctor about 25 times and about half of those times the doctor called on plaintiff. Plaintiff's right side has recovered, but his back still bothers him more or less. His suffering was worse and lasted longer than that caused by his former injuries. His back hurts when he stoops over, and when he rides for any distance and is jostled. It is difficult to pick up or lift anything. Two or three months following the accident, plaintiff had his truck repaired and made one or two trips,...