Ellis v. Wolfe-Shoemaker Motor Co., No. 17497.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Arnold
• Citation: 55 S.W.2d 309
• Parties: ELLIS v. WOLFE-SHOEMAKER MOTOR CO.
• Docket Number: No. 17497.
• Decision Date: 21 November 1932

55 S.W.2d 309 ELLIS
v.
WOLFE-SHOEMAKER MOTOR CO. No. 17497. Kansas City Court of Appeals. Missouri. November 21, 1932.

Appeal from Circuit Court, Sullivan County; Paul Van Osdol, Judge.

Action by George Ellis against the Wolfe-Shoemaker Motor Company. From judgment for plaintiff, defendant appeals.

Reversed and remanded.

C. M. Kendrick, of Marceline, and A. L. Burns, of Milan, for appellant.

G. Derk Green, of Marceline, and Lon R. Owen, of Brookfield, for respondent.

ARNOLD, J.

This is an action in damages for personal injury. Plaintiff recovered judgment in the sum of $3,000.00 and defendant has appealed.

The facts of record are that plaintiff was injured about eight a. m. of July 11, 1930, by being struck by an automobile belonging to the defendant and operated by its employee, one Jesse Crockett. The collision occurred at the foot of the bridge or viaduct on Garcia street and on the east side thereof, in the city of Marceline. The viaduct extends east and west and spans the tracks of the Santa Fé Railroad Company in that city. The automobile in question came over the top of the viaduct from the west and down a grade of 11.66 per cent. The viaduct is flat on top. There is some conflict in the testimony as to how far one can see eastward when driving a car in that direction toward the east and on the flat portion of the viaduct. However, there is evidence that there is a clear view down the east side of the viaduct from the point where defendant's automobile started to go down toward the east, which is about 150 to 160 feet from the point where plaintiff was struck. Starting at the top of the viaduct and going toward the east the viaduct extends down a hill a distance of 39½ feet and is paved with wooden blocks. Beginning with this point Garcia street is surfaced with cinders to the point at the bottom of the hill where it connects with a gravel surface of the street leading away.

The roadway on the flat part of the viaduct is 18 feet 6 inches in width. Beginning at the east incline it is 20 feet in width to its

55 S.W.2d 310

east end. The street is 81 feet wide from sidewalk to sidewalk over the portion surfaced with cinders. There are paved sidewalks on each side of Garcia street leading up toward the viaduct proper. These sidewalks begin 88 feet from the east end of the viaduct or 127½ feet from the top of the incline. From the east end of the south sidewalk there is a cinder path that leads up to the viaduct. When the walk leaves the cinders it goes on over the viaduct and this portion of the walk is fenced off from the roadway. If one should continue directly west from the edge of the paved sidewalk on the south side of the street he would not go over the viaduct but to the south thereof. Persons going westerly over the viaduct upon the south side of the street usually left the paved sidewalk about 30 feet from its westerly end and would then go somewhat to the north and west, as the street narrows as it goes upon the viaduct. However, in going upon the viaduct, after leaving the sidewalk, persons would use the cinder path for the purpose of reaching the viaduct. Many persons proceeded westerly on the south side of the street, then crossed the street at the foot of the incline to reach a path leading north from the north side of the street. There is another crossing of the railroad tracks, which is a grade crossing, north of Garcia street.

Plaintiff, at the time in question, came westwardly upon the south sidewalk of Garcia street, proceeded to the foot of the incline and then stepped into the street, intending to cross the same for some purpose not disclosed in the testimony. Plaintiff testified he looked west before he left the sidewalk and saw the automobile which afterwards struck him; that it was then about 15 feet away; that it was that distance away from him when he stepped off of the sidewalk; that when he got about 2 feet into the street he stopped and the driver of the automobile "pulled into me and hit me." There was other testimony that the automobile turned (twirled) just before it struck plaintiff. Plaintiff further testified that "he did not know how far it was from where he was struck to the `traveled portion' of the street," and that "there were no obstructions in the street." Plaintiff was the only eyewitness to the collision who testified in his behalf.

Defendant's witness, Conrad, testified he was going west on the south side of Garcia street when he saw plaintiff start across the street; that at this time he noticed the automobile coming over the viaduct, that it appeared to be coming down the center of the street; that plaintiff took about a step off of the sidewalk; that on account of some intervening trees, plaintiff and the car were out of his sight for a time; that "just as George (plaintiff) came in sight (again) and the car came down the street meeting another car; and it looked to me like he (the driver of the car) had started to pull to his left around him, and I don't know whether he applied the brakes and one didn't take, his right-hand brake take, or not, he turned very near crosswise, and he hit George and knocked George down"; that when he first observed plaintiff the latter was looking at the ground; that "the car was very nearly down the incline and when George stepped out past the trees he was still looking at the ground when I saw him, and it looked like the car was going to pull around him, and instead of that he pulled crosswise in the street."

On cross-examination the witness testified: "It looked like the car came down the traveled center and when it got down to a point near where Mr. Ellis was, somewhere, the car whirled this way and hit him"; that "there was nothing down the hill to obstruct the car on the incline" and that "if the car had gone down the hill on the traveled portion there was no obstruction."

Defendant's witness, Lomar, testified that he was driving his car west across the viaduct on the north side of the street and on approaching the viaduct, he saw plaintiff starting across the street; that plaintiff was looking down and witness sounded his horn and plaintiff then waved to him; that when the witness got "about half way up to the bridge" he saw the car that afterwards struck plaintiff coming down and observed plaintiff "out in the track where this car would go. * * * About where an ordinary person would drive driving over the hill; and I feared something might happen and I was looking back and the other car struck him, the rear fender of the car, * * * he was ahead of me when I waved to him, but the other car was coming down the hill and I knew if the fellow turned toward me he would hit me, so I was looking sidewise where the car was passing.

"Q. You knew that in order to avoid hitting Mr. Ellis, he would run into you? A. Yes, sir."

He was then asked: "What did the situation look like with reference to that?" He answered:

"This other car came over the hill...