Epstein v. Kansas City Public Service Co.

• Decision Date: 03 December 1934
• Docket Number: 17663
• Citation: 78 S.W.2d 534
• Parties: EPSTEIN v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Kansas Court of Appeals

78 S.W.2d 534

EPSTEIN v. KANSAS CITY PUBLIC SERVICE CO.

No. 17663

Court of Appeals of Missouri, Kansas City

December 3, 1934

Rehearing Denied Jan. 28, 1935.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

“ Not to be published in State Reports.”

Action by Morris Epstein against the Kansas City Public Service Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

C. L Carr, Hogsett, Smith, Murray & Trippe, and E. E. Ball, all of Kansas City, for appellant.

J Francis O’Sullivan, of Kansas City, for respondent.

OPINION

BLAND, Judge.

This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $7,500.00. However, the court required plaintiff to remit $2,500.00 of this amount, resulting in a final judgment in favor of plaintiff in the sum of $5,000.00. Defendant has appealed.

The facts show that plaintiff was injured about 1 p. m. of August 12, 1929, on Walnut Street (a north and south public thoroughfare in Kansas City) at a point about midway between 9th and 10th Streets (east and west thoroughfares) by being struck by one of defendant’s street cars moving southwardly on Walnut Street. Plaintiff came out of the Ridge Arcade Building on the west side of Walnut Street and started across the street in a somewhat southeasterly direction, intending to cross the street. There was a white parking line on the west side of Walnut Street about 6 feet from the curb and parallel thereto. A string of automobiles was parked against the curb on the inside of this line.

Plaintiff testified that when he got upon the sidewalk on the west side of Walnut Street he looked north to see if a street car was approaching; that he then saw the car that afterwards struck him about 100 feet away, moving slowly and, the witness thinking that he had plenty of time to get across the track without being struck by it, he proceeded on in a slow walk without again looking; that when he arrived at a point over the east rail of the southbound tracks the fender of the street car struck his right ankle, throwing him eastwardly on his head and shoulders. The street car passed him by without running over him.

There was other testimony to the effect that there was a double parked automobile about 100 feet north of the point where plaintiff was struck; that the street car, when it reached a point opposite said automobile, was proceeding at the rate of speed of about 5 miles per hour; that after it reached a point about 50 feet north of where plaintiff was struck it rapidly increased its speed so that, at the time of the collision, it was going at the rate of about 15 miles per hour; that as plaintiff was leaving the white line the car was about 50 feet away from him. In other words it was about this time that the car suddenly picked up speed. There was evidence that at the time the street car increased its speed the motorman was looking directly along the line of the parked automobiles; that the speed of the street car did not decrease but rather increased up to the instant it struck plaintiff and that no warning was given of its approach.

The evidence further discloses that the east rail of the southbound car track was about 22 or 23 feet from the west curb of the street; that the white parking line was from 6 to 7 feet from the curb; that the distance between the two rails was 4 feet 8 inches; that the body of the car extended 14 or 15 inches over the rail on each side of the car. From this evidence the jury could have found that it was approximately 12 feet four inches from the parking line to the first rail of the southbound tracks. Other facts will be mentioned in connection with the points raised by defendant.

It is insisted by the defendant that the court erred in giving the jury plaintiff’s instruction No. 5, submitting negligence of the operator of the car in failing to warn plaintiff of its approach, in giving plaintiff’s instruction No. 7, submitting a humanitarian case, in refusing defendant’s instruction E, withdrawing the matter of failure to warn, and in failing to give defendant’s instruction in the nature of a demurrer to the evidence.

It is claimed that the failure to warn plaintiff of the approach of the car was not the proximate cause of the collision, as plaintiff knew of its approach and, further, that plaintiff was guilty of contributory negligence as a matter of law.

It is true that plaintiff knew of the approach of the car, but there is ample testimony in the record tending to show that he was oblivious of the danger. This is clearly shown by the testimony of the motorman, himself, taken in connection with other testimony in the case. The motorman testified that he first saw plaintiff when the latter was about at the parking line; that plaintiff did not hesitate at this point but went on across the street without any hesitation; that he saw when plaintiff came into view that it would just be a few seconds until plaintiff would be on the rail; that he then sounded the gong so loudly as to hurt his heel; that he put the car in emergency in order to stop it. It is, therefore, apparent that the motorman, himself, saw plaintiff oblivious to the danger, and that he was going to pass in front of the car, when plaintiff was 12 feet from the first rail of the track. This was ample evidence upon which to submit to the jury negligence in failing to warn. Stout v. Kansas City P. S. Co. (Mo. App.) 17 S.W.2d 363; Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335, 337. Of course, the jury was not required to believe that the motorman sounded a warning because he testified that he did so. It was within the province of the jury to believe such of the motorman’s testimony as was favorable to plaintiff and to disbelieve the remainder. Stout v. Kansas City P. S. Co., supra.

But we are of the opinion that plaintiff was guilty of negligence, as a matter of law. The evidence shows that plaintiff did not look again after he looked while he was on the sidewalk and saw the car approaching 100 feet away. In other words, he traversed a distance of approximately 18 feet 4 inches from the place that he last looked to the west rail of the southbound tracks without looking, whereas, if he had looked before he entered the danger zone, or, as he approached the space where the overhang of the car was about to pass, he would have seen the car in time to have avoided being injured. Instead of that he traversed a distance of from 22 to 23 feet without taking any means whatever to ascertain the nearness of the approaching car, which he had seen 100 feet distant prior to his traversing said space. Under the circumstances, there is no question but that, under the authorities, he is guilty of contributory negligence, as a matter of law. Cole v. Met. St. R. Co., 121 Mo.App. 605, 610, 97 S.W. 555; Paul v. United Rys. Co., 152 Mo.App. 577, 586, 587, 134 S.W. 3; Grout v. General Elec. R. Co., 125 Mo.App. 552, 558, 559, 102 S.W. 1026; Gordon v. Metropolitan St. Railroad Co., 153 Mo.App. 555, 564, 134 S.W. 26; Fanning v. St. Louis Transit Co., 103 Mo.App. 151, 157, 158, 78 S.W. 62; Gubernick v. United Rys. Co. of St. L. (Mo. Sup.) 217 S.W. 33, 34, 35; Rose v. Wells (Mo. App.) 266 S.W. 1015, 1016, 1017; Goggin v. Wells (Mo. App.) 273 S.W. 1107, 1108.

It is true that plaintiff testified on direct examination that he looked when he was at the white line and then saw the street car near the corner 150 feet away and that he thought he would be able to go safely across in front of it. However, on cross-examination he was confronted with his deposition in which he testified as set out above and he stated at the trial that what he said in his deposition in this regard was true. We cannot take his testimony on direct examination as true but must assume that on cross-examination to be the facts. Pentecost v. St. L. Merchants’ Bridge Terminal R. R. Co. (Mo. Sup.) 66 S.W.2d 533; Long v. Binnicker (Mo. App.) 63 S.W.2d 831; Murray v. St. Louis Transit Co., 176 Mo. 183, 189, 190, 75 S.W. 611; Behen v. St. L. Transit Co., 186 Mo. 430, 440, 441, 85 S.W. 346; Graefe v. St. Louis Transit Co., 224 Mo. 232, 264, 265, 123 S.W. 835; Feary v. Met. St. Ry. Co., 162 Mo. 75, 105, 106, 62 S.W. 452; Shirts v. Overjohn, 60 Mo. 305, 308; Steele v. Kansas City Southern Railroad Co., 265 Mo. 97, 175 S.W. 177; Holmes v. Leadbetter, 95 Mo.App. 419, 69 S.W. 23; Cogan v. Cass Ave. & F. G. Ry. Co., 101 Mo.App. 179, 188, 189, 73 S.W. 738. There is nothing in the record to indicate that plaintiff was either ignorant or illiterate.

It will not do to say that plaintiff was excused for going in front of the car because he thought that he had ample time to get across the street in safety; that when he saw the approaching car it was coming at a slow rate of speed, but afterwards increased its speed. It is true that the evidence shows that the place where plaintiff was injured was a downtown point in the city; that there were parked automobiles along the side of the sidewalk as well as a double...