Fischer v. Kansas City Public Service Co.

• Decision Date: 17 June 1929
• Docket Number: No. 16635.,16635.
• Citation: 19 S.W.2d 500
• Parties: FISCHER v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

19 S.W.2d 500

FISCHER v. KANSAS CITY PUBLIC SERVICE CO.

No. 16635.

Kansas City Court of Appeals. Missouri.

June 17, 1929.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Robert W. Fischer against the Kansas City Public Service Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles L. Carr, Harding, Murphy & Tucker, and E. E. Ball, all of Kansas City, for appellant.

Harry G. Kyle, Walter A. Raymond, and Carl Borrello, all of Kansas City, for respondent.

LEE, C.

This is an action for personal injuries resulting from a collision between plaintiff's automobile and a bus owned and operated by defendant's predecessors, at the intersection of Thirty-Ninth street and South Benton, in Kansas City, at about 8:15 p. m. on October 15, 1925. South Benton is a public street, running north and south, 26 feet wide from curb to curb; Thirty-Ninth street, running east and west, is 36 feet wide from curb to curb, with an upgrade of 5.6 per cent. coming from the west into South Benton. A chart introduced in evidence showed that the bus was 30 feet long, and the Chevrolet about 10½ feet long. The bus weighed 7,000 pounds. It was testified that at 30 miles an hour a car will travel about 45 feet a second, and at 8 miles an hour about 12 feet a second.

Plaintiff was driving his car, a Chevrolet sedan, southward on South Benton; his wife being seated at his right on the front seat. When they reached the north line of Thirty-Ninth street they stopped to permit a westbound Ford car go by. Plaintiff then started his car, in low gear, across Thirty-Ninth. An east-bound bus belonging to the receivers of the Kansas City Railways Company (for whom defendant was by stipulation substituted as defendant), coming into South Benton at the same time, came into collision with plaintiff's car; the left front corner of the bus striking the Chevrolet near the center on the right side. When both cars stopped, they were standing near the southeast corner of the intersection. The driver and his one passenger alighted and went around to the side of plaintiff's car. Plaintiff and his wife were assisted out of the left door of their car, and taken home, where Mrs. Fischer was in bed for six weeks, and claims permanent internal injuries. Plaintiff received injuries to his hand, which he claims are permanent, and other injuries.

This action was for his own injuries, loss of his wife's society and services; also for the damage to his automobile (which it was stipulated were $300, if any at all). There was a verdict and judgment for plaintiff for $2,000, from which defendant brings this appeal.

Appellant assigns as error (1) the overruling of its demurrer at the close of all the evidence; (2) the overruling of defendant's objection to certain allegedly improper arguments made by respondent's counsel to the jury; and (3) in giving plaintiff's Instruction No. 1.

As to the first: Plaintiff testified that, after stopping on the north side of Thirty-Ninth street to let the Ford car pass, he looked to the right, or west, where he could see about half a block, and saw no car coming; that he then started his car in low gear, and when he had got into the intersection, on the west of the center of South Benton, and his "front wheels back to the center" of Thirty-Ninth street, his wife called out "Oh, Lord! the bus;" that he then looked, and for the first time saw the bus, which was then 75 or 80 feet away, traveling, as he judged, about 30 miles an hour; that he then threw his gear into second, and "gave it the gas." When asked where his car was in relation to the line of vision when he first saw the bus, he said, "Well, I figure that I was in front of the bus; my car was in front of the bus when I first came up;" that he then went ahead as fast as he could go; that he did not try to swerve; that the bus was traveling along the center of Thirty-Ninth street; that his own car moved about 14 or 15 feet after he saw the bus until the collision; that at the time of the collision the front of his own car was about 3 feet from the south Thirty-Ninth street curb; that the last time he saw the bus before the collision he could not say it was clear into the intersection; that when he first saw the bus, about 90 feet away, the front of his car was up to the center of the street, and when the collision took place the back end of his car was about the center of the street; that in estimating the speed of the bus he might be as much as 5 miles wrong either way.

Mrs. Fischer testified that their car came to a dead stop right on the corner before starting into the intersection, to let the Ford car go west; that her husband then started their car in low gear; that she first saw the bus when her car was almost to the center of Thirty-Ninth street; that it was then about three bus lengths down Thirty-Ninth street, traveling about 25 or 30 miles an hour; that she then said, "My Lord! here comes the bus," and her husband then "put on the gas and started across"; that they had passed the center of Thirty-Ninth street, "all apast except the back wheels," when they were struck, "right in the center of their car," "right where I was seated"; that she heard no horn or alarm. When asked, on cross-examination, "It is not a fact, is it, that the bus was only 30 feet from that intersection when you entered it?" she answered, "It was not; the bus was about three bus lengths down the middle of the street," and that the fender and front of her car were then about the center of Thirty-Ninth street, traveling "8 or 10 miles per hour, very slow, just creeping;" that as the bus came into South Benton "it swerved, and hit us right in the side, and pushed us over on the southeast corner"; that this swerve was just before it hit us; I saw it coming;" "it was right on us when I saw it turn; * * * I don't know whether it was a foot or two feet or three feet, I am not saying;" that she did not hear her husband honk his horn as he entered Thirty-Ninth street; that he did not swerve to the right or left.

Witness Kendall, for plaintiff, was the sole passenger on the bus, in which he was seated near the back. He testified that the bus driver sounded his horn at Prospect avenue, but he did not hear it again; that the bus was traveling about 25 or 30 miles an hour until the driver cut his engine off just before the collision; that witness first saw the lights of the Chevrolet car when it was about 30 feet north of Thirty-Ninth street, and the front end of the bus was then about 75 or 85 or 100 feet west of South Benton; that the Chevrolet was moving very slowly, 8 or possibly 10 miles per hour; that the Chevrolet entered the intersection first, at which time the bus was 30 to 40 or 50 feet from the intersection; that the Chevrolet had about reached the center when the bus reached the intersection; that he did not hear the Chevrolet sound its horn, nor see it stop; that the collision occurred about the center of the intersection, north and south, and just a little bit west of the center of South Benton; that the Chevrolet did not swerve to the left before the cars came together; that he saw no other cars or traffic any place along there.

Witness Mentzel, on behalf of defendant, testified that he was standing on the north side of Thirty-Ninth street, about 125 or 130 feet east of South Benton; the first thing he observed was when he heard the horn of the bus, which was then about in the middle of the block to the west, traveling between 10 or 15 miles an hour; that as the bus approached the intersection it gave "a slight little sound," just about as it entered the street; that about that time an automobile came into South Benton; that he did not think the bus slowed down as it crossed the intersection. He described the accident as follows:

"Well, gentlemen, when these two cars come together it give a crash, and the sounding of the glass catched my ear first, and as they came together and the crash, after the sound of the crash going together, the cars were still moving forward, and they turned in a southeasterly direction, more south then east, they were just about some 25 per cent. southerly, at least, and they did not stop exactly as that crash came; they still went forward, so after I went over there and when I came over there there was just about space enough in between the bus and that smaller car so I could see that; then the first thing I noticed, as I approached the car, a woman getting out from the hind door on the left-hand side of the car, and the man was still in the car in the front seat on the right-hand side."

In his written statement, taken prior to the trial, and introduced in evidence, he stated:

"I noticed an east-bound Thirty-Ninth street bus when it was about 100 feet west of South Benton. The bus driver sounded his horn, when the bus was about 100 feet west of South Benton. The bus driver again sounded his horn again just as he got to South Benton. There is a grade at this place on Thirty-Ninth street, which the bus was climbing, and it was traveling slowly. When I first saw the automobile that was hit, it was going south on South Benton, and was even with the north curb at Thirty-Ninth and South Benton. At this time the bus had already started across South Benton. When the collision occurred, the bus was more than half way across South Benton. The automobile that was going south on Benton struck the bus at the left front fender, and skidded the front end of the bus about 4 feet south. The bus had not completely stopped, and it carried the automobile with it a very short distance."

The bus driver testified that he was driving east, at about 10 or 15 miles per hour, uphill, 4 or 5 feet from the south curb; that he sounded his horn possibly half way from a point one block west of South Benton, and again just before entering the intersection; that he looked and saw no other cars in the...