Gaylor v. Weinshienk

• Decision Date: 03 May 1926
• Citation: 283 S.W. 464,221 Mo.App. 585
• Parties: THOMAS J. GAYLOR, RESPONDENT, v. LOUIS WEINSHIENK, APPELLANT. [*]
• Court: Kansas Court of Appeals

283 S.W. 464

221 Mo.App. 585

THOMAS J. GAYLOR, RESPONDENT, v. LOUIS WEINSHIENK, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

May 3, 1926

Appeal from the Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

AFFIRMED.

Judgment affirmed.

Miles Elliott and Duvall & Boyd for respondent.

Eastin & McNeely for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.--

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3500 and defendant has appealed.

The facts show that plaintiff was injured about 1:15 P. M. of July 8, 1924, near the intersection of 11th street and Grand avenue in the City of St. Joseph, by being struck by a Ford truck driven by the agent and employee of the defendant. Grand avenue runs east and west and 11th street north and south; Grand avenue is paved, 11th street is paved south of Grand avenue but not north of it; 11th street is about thirty feet wide from curb to curb and Grand avenue is five or six feet wider. These streets at the place in question were much traveled, a great many automobiles turning from one street into the other. There was a single street railway track laid on 11th street south of Grand avenue, which terminated at the latter street in a Y used for turning back street cars. The switch point of this Y on 11th street was located about twelve or fifteen feet south of the south curb line of Grand avenue and about six or eight feet south of the south property line of that street.

Plaintiff was employed by the street railway company in greasing curves and adjusting springs in the switches of its tracks. He carried a broom and a grease bucket. There was a "spud" about eighteen inches long on the handle of the broom which he used in cleaning mud out of the curves. He also carried a paddle about two and one-half feet long which he used in greasing curves. Discovering that the spring in the switch point, which was located at the east rail of the track and to the east of the center of the street, needed adjusting he looked down Grand avenue for automobiles and seeing none, knelt down on both knees and started to adjust the burr on the spring. After having remained in this position three or four minutes, intent upon his work, he was struck in the back by defendant's truck. The truck had come from the west on Grand avenue and had turned southwardly into 11th street.

Plaintiff testified that he had done no work prior to the time he was struck except at adjusting the spring; that he did not look again down Grand avenue or look back because "I was busy with the spring;" that he was down on both knees and working with both hands; that it was necessary for him to assume that position to do the work; that the reason he was facing south was that "the burr on the tap was on the inside, it would make me handier to face south so I could use my right hand to tighten the burr;" that the burr was "on the west side of this east rail;" that if he had faced north he would have been required to tighten the burr with his left hand. He testified that he knew that the corner of 11th and Grand avenue was a much traveled street and that many automobiles and other vehicles were present and turning there.

There was a two-story brick building at the southwest corner of Grand avenue and 11th street, standing flush with the property lines of both streets, and a watering trough about thirty feet west of the west curb of Grand avenue and at the south curb of that street. As the driver of the truck approached the intersection there was a horse-drawn vehicle pulling away from the watering trough, going in the same direction, which required the driver of the truck to turn out and around the horse and vehicle and to the north side of Grand avenue. The approach of the truck from the rear frightened the horse.

The driver of the truck, testifying for the defendant, stated that the occupants of the vehicle stopped the horse "when the horse's head was about even with 11th street on Grand." "Q. Even with the property line on the west side of 11th street? A. Yes, sir." When the horse stopped it was nearly at the center of Grand avenue. The witness testified that when he turned around the corner of 11th street he passed to the left of the center of the intersection and as he went around the corner he was looking at the horse (which was prancing) and buggy and did not see plaintiff until he was two or three feet from him, when his companion in the truck said, "Look out, there is a man." He testified that he looked just as soon as his attention was called to plaintiff. At that time he tried to turn to the east of plaintiff was unable to do so and struck him. He testified that his truck was going at the rate of about eight or ten miles an hour and that he could have stopped it in not over eight feet and that it was in fact stopped after it struck plaintiff so that plaintiff was under it.

The man who was riding with the driver of the truck, testifying for the defendant, stated that when he first saw plaintiff they were about fifteen feet from him; that the first glimpse he got of plaintiff was "as soon as we turned around the horse;" that when the truck turned it "went a little east of the center" and "went down on the east rail;" that when they were fifteen or twenty feet away from plaintiff, the witness said to the driver of the truck "watch that man, Kinney," (meaning the driver); that there was nothing between the witness and plaintiff to obstruct the witness's view. The witness was on the right-hand side of the seat and the driver was on the left. After the collision he found plaintiff's tools at the switch box. This witness, as well as the driver of the truck, did not remember whether any horn was sounded but there was other testimony that no warning of the approach of the truck was given to plaintiff.

There was evidence that the head of the horse was six or eight feet west of the west property line of 11th street when the truck "cut around in front" of the driver of the vehicle and that when the truck turned on 11th street it was running at the rate of speed of from thirty to thirty-five miles an hour.

Defendant makes the point that the court erred in refusing to give instruction D in the nature of a demurrer to the evidence. This point is based upon the contention that plaintiff was guilty of contributory negligence as a matter of law, defendant pointing out that the case was submitted to the jury by plaintiff upon the straight negligence theory, the latter having abandoned the humanitarian theory which was pleaded in the petition along with the other theory. Defendant argues that plaintiff placed himself approximately in the center of a much traveled street, knowing that automobiles and other vehicles would be coming around the corner from the west into 11th street, with the view of the drivers thereof obstructed by reason of the two-story brick building flush with the property lines at the southwest corner of the intersection, without again looking or having done anything to warn drivers of such vehicles that would necessarily approach him.

This argument is one that could have been properly directed to the attention of the jury but is not one for this court. It is apparent that plaintiff was not guilty of contributory negligence as a matter of law. The care required of a laborer who is engrossed in his duties on that part of the street used by vehicles is not to be determined by the same rules that are applicable to an ordinary pedestrian. "He is not negligent, while not moving about, because he becomes engrossed in his work and does not look about or listen for approaching vehicles. He is not called upon to exercise the same diligence in avoiding accidents as pedestrians or others who use the street merely as a medium of locomotion." [Berry on Automobiles (4 Ed.), sec. 532, p. 474. See, also Dube v. Storage Co., 236 Mass. 488, 492, 128 N.E. 782; Cecola v. Cigar Co., 253 Pa. 623, 98 A. 775; Ostermeier v. Implement Co., 255 Mo. 128, 164 S.W. 218; Nehring v. Chas. M. Monroe Stationery Co., 191 S.W. 1054.] He was required to exercise only that degree of care that a reasonably prudent person under the circumstances would exercise and he could rely to some extent on the assumption that the drivers of automobiles would not come from around the corner in such a way as not to be able, after the appearance of danger, to take any action to avert a collision. It will also be borne in mind that plaintiff was not on...