Ellis v. Wolfe-Shoemaker Motor Co.

Decision Date21 November 1932
CourtKansas Court of Appeals

Appeal from Circuit Court of Sullivan County.--Hon. Paul Van Osdol Judge.


Reversed and remanded.

G. Derk Green and Lon R. Owen for respondent.

C. M Kendrick for appellant; A. L. Burns of counsel.



--This is an action in damages for personal injury. Plaintiff recovered judgment in the sum of $ 3000 and defendant has appealed.

The facts of record are that plaintiff was injured about eight A. M. on 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 Fe 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 thirty-nine and one-half 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 eighteen feet six inches in width. Beginning at the east incline, it is twenty feet in width to its east end. The street is eighty-one 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 eighty-eight feet from the east end of the viaduct or 127 1/2 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 thirty feet from the 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 afterward struck him; that it was then about fifteen feet away; that it was that distance away from him when he stepped off the sidewalk; that when he got about two 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 (whirled) 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 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 a head 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 and was coming down the bridge, incline, and Mr. Ellis was walking down the street. Of course I was on the other side of the street when I passed Mr. Ellis, he was far enough out in the road a car coming would have struck him if he hadn't got back.

"Q. When you passed Ellis, how far would you say it was from Ellis to this oncoming car from the west? A. I judge forty or fifty feet."

On cross-examination the witness testified that when plaintiff waved to him Ellis "was right about on the gravel;" that there was nothing to prevent the driver of the oncoming car, after he came over the top of the bridge, seeing plaintiff; that the collision occurred "Just to the back of me, probably fifteen feet;" that the witness was traveling at a rate of speed of about twenty miles per hour; that the car that struck plaintiff was proceeding at the rate of about twenty-five miles per hour; that it was going at the same rate of speed when it struck plaintiff as before and apparently the driver thereof did not slacken its speed any until it struck plaintiff; that there were marks where the wheels of the automobile of defendant slid, which marks were about thirty feet in length; that the place where the collision occurred "was almost level." It was stated at the trial that Crockett, the driver of defendant's car, was dead.

The case was submitted to the jury by plaintiff upon three grounds of negligence, all of which were charged in the petition. (1) The humanitarian theory; (2) violation of an ordinance of the city prohibiting a rate of speed of a motor vehicle upon the streets of the city in excess of fifteen miles per hour, and (3) common-law excessive speed.

Defendant contends the petition does not state a cause of action under the humanitarian theory, but it is quite apparent without setting forth the allegations of the petition in this respect, that this contention is without merit. The main case on which defendant relies, Holwerson v. Ry. Co., 157 Mo. 216, 57 S.W. 770, was overruled in the case of Murphy v. Railroad, 228 Mo. 56, 80, 128 S.W. 481. The leading case upon the humanitarian doctrine, as now existing in this State, is Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482. The allegations of the petition in reference to the humanitarian theory meet every essential laid down in that case.

It is insisted the court erred in refusing defendant's instruction in the nature of a demurrer to the evidence. If the jury was bound to believe the testimony of plaintiff, then, no doubt this contention must be sustained. According to plaintiff's own testimony he stepped into the street when the automobile which afterwards struck him was but fifteen feet away, all of which he saw. While there is testimony that an automobile at the place in question, proceeding at a speed of twenty-five miles per hour could have been stopped...

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