JOHNSON, J.
This is an action for damages for personal injuries plaintiff alleges were caused by negligence of defendant. The verdict of the jury was for plaintiff in the sum of $11.083.33. A remittitur of $3,583.33
was entered and judgment rendered for the remainder. Defendant appealed.
The injury occurred in the afternoon of March 14, 1909, and was caused by a collision between an electric coupé and an electric street car operated by defendant on Broadway street in Kansas City. This street runs north and south, and is 60 feet wide between the curbs. Defendant operates a double-track railway in the middle of the street. Each of the tracks is 4 feet 7 inches wide, the distance between them is 5 feet 4 inches, and therefore the width of the space occupied by both tracks is 14 feet 6 inches. The width of the pavement on each side of the tracks is 22 feet 9 inches. Thirty-Eighth street runs east and west, and makes a jog of 200 feet at the intersection of Broadway. The street east of the intersection is about 200 feet north of the street west of the break. Plaintiff, who was the only occupant of the coupé, was east bound on Thirty-Eighth street, and, when he reached the west line of Broadway, it was his intention to cross over to the east side of that street and go north to the east continuation of Thirty-Eighth street, and thence east on that thoroughfare, but, on account of passing street cars, he changed his course by turning north on the west side of Broadway and running about 25 feet in that direction. Then he turned eastward to cross the tracks, took a course north of east, and had almost cleared the crossing of the west railway track when a south-bound street car on that track, running at high speed, struck the rear wheel of his coupé, and caused the injuries of which he complains. In approaching Broadway from the west plaintiff was running eight or ten miles per hour, but he reduced speed before entering Broadway, and ran slowly over the crossing. We quote from his testimony: "Q. State, if you remember, what speed you were going at as you approached Broadway on West Thirty-Eighth? A. Probably eight or ten miles an hour. Q. And until what time did you maintain that speed? A. Until I got almost into Broadway, I slowed down then. Q. Then what did you do after that? A. Well, a south-bound car passed me just there. I turned towards the north, slowing up, and then there was a north-bound car right there which I hit nearly, angling a little to the east. Q. Now, before this occurred, did you see a south-bound car, a car that afterwards struck you? A. Just before I turned there, I looked up the street, and away up the street there 300 or 400 feet I saw a car. Q. Was that the same car that afterwards ran into your machine? A. I presume it was. Q. Then from that time on what did you do? That is, after getting to Broadway, what did you do then? A. I angled up towards the north. I went north angling a little to the east. I looked up the track a matter of a hundred feet or so, and didn't see a car. I turned almost due east with the idea of going across the track. Q. Then what occurred after that? A. When I got just up about to the street car track, I looked to the right, and I saw this automobile going by. Q. That is the one Miss Ransom was in? A. Yes, sir. Q. Then what occurred? A. Then I slowed down there, well, just dragged across waiting for them to get out of the road. Q. Where was your electric automobile when it was struck by the street car? A. I had got almost over it, over the track, somewhere just north of the north line of West Thirty-Eighth. Q. That is you were nearly somewhere near the north line of West Thirty-Eighth street? A. Yes, sir. Q. And your automobile had almost gotten off of the track when it was struck by the street car? A. Yes, sir. Q. What part of the automobile was struck by the street car? A. The left hind wheel. Q. Well, did you see the car, that street car before it hit you? A. Well, after I slowed up. Q. I mean just before it hit you? A. Just as that automobile went by I heard the clang of a bell. I looked up. There was a street car. He was a matter of 10 or 12 feet away from me. I put on my power with an effort to get over if I possibly could, but, before I could get off the track, the car hit me." On cross-examination he testified: "Q. Now, you first turned north after getting to Broadway, did you? A. Yes, sir. Q. How far did you go north, or in a northerly direction? A. I imagine about 25 to 30 feet. Q. Then did you turn in an easterly direction? A. At the time I looked up the track to see the car and turned to cross it. * * * Q. When did you come to the conclusion that you crossed the street, or started to cross the street, 25 feet or so north of Thirty-Eighth street west? A. Well, as I got into Broadway, there was a north-bound car there prevented me from going straight across. I just slowed around to the north, let it go by. As soon as it went by, I was ready to go over. Q. Did you discover a south-bound car there too? A. Just before I got to the street there was a south-bound car went down. Q. That would be a car two blocks ahead of the one that hit you? A. It was fully a block ahead. Q. Now, didn't you go clear up on the west side of the street until you got up opposite to East Thirty-Eighth street and then cross over? A. No, sir. * * * Now, when you were coming into Broadway, did you notice an automobile there then, any automobile there anywhere? A. No, sir. Q. When did you first notice the automobile? Where were you when you first noticed the automobile? A. Well, when I was almost in the track crossing it. Q. And where was that automobile at that time? A. Just a little bit to the south of me, going north. Q. That is a wide street there, isn't it? A. Yes, sir. * * * Q. How was this automobile going as to speed when you first saw it? A. I don't know how it was. It struck me that when I first noticed it that it had checked practically
and, as I slowed it up, he sped up. Q. And after you first saw it was it in that space between the south-bound track and the curb? A. It was between the north-bound track and the curb. Q. Between the north-bound track and the curb? A. Yes, sir. Q. And was it about the middle way of that space? A. I could not tell you that. Q. You were headed kind of northeast, were you, as you were going across the tracks? A. I was going east a little incline to the north. Q. Did you look to see if there was a car going on the south-bound track before you went on to the track? A. Yes, sir. Q. How far was your car away from the—your automobile away from the car tracks when you looked north to see if there was a car coming on that track? A. About eight or ten feet. Q. Then from the time that you looked to see whether a car was coming you went eight or ten feet to the track, and went about five feet across the track, that is, the front end of your car, you got nearly the whole car across the track? A. You mean before the automobile went by? Q. Before the car struck you? A. I had got almost off the track when the car struck me."
Miss Ransom, who was a witness introduced by plaintiff, was riding in the automobile which caused plaintiff to reduce his speed while on the crossing. She testified in part: "Q. Now, as you passed the machine, I wish you would tell the jury what, if anything, you did to the speed of your machine? A. Why, we had to speed up our machine to get out of the way of the electric. Q. Where was it coming at that time? A. It was coming down into Broadway. Q. Did you notice the electric automobile at any time as it was about to go on the track, or close to the track? A. Yes, sir. Q. Did you notice the approaching street car, the one that hit it? A. Yes, sir. Q. At that time? A. Yes, sir. Q. Tell the jury how far it was away? A. Well, it was about a block away when I first saw him. Q. When you first saw it? A. Yes, sir. Q. Now, did you notice, after you passed or as you were passing, did you notice the electric any further? A. Why, you mean on to the track? Q. Yes. A. Why, it was in about two or three feet of the track then. Q. And, when it got down to within about two or three feet of the track, did you notice the street car then? A. Yes, sir. Q. Where was it? A. A couple of car lengths away. Q. How was it running, Miss Ransom? A. At a rapid rate of speed. Q. Are you a judge of speed? Could you tell the jury how many miles an hour it was going? A. No, I...
