Grasher v. Kansas City Public Service Co.

• Decision Date: 26 January 1931
• Docket Number: No. 17073.,17073.
• Citation: 35 S.W.2d 645
• Parties: GRASHER v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

35 S.W.2d 645

GRASHER v. KANSAS CITY PUBLIC SERVICE CO.

No. 17073.

Kansas City Court of Appeals. Missouri.

January 26, 1931.

Rehearing Denied February 16, 1931.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

"Not to be officially published."

Suit by Rose M. Grasher against the Kansas City Public Service Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Chas. L. Carr, E. E. Ball, and Ben L. White, all of Kansas City, for appellant.

Neibling & Levis, of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. The jury returned a verdict in favor of plaintiff in the sum of $10,500.00. However, the trial court required a remittitur of $3,000.00, resulting in the entry of a judgment for $7,500.00.

The facts show that plaintiff was injured by being struck by the side of the rear end of a street car operated by the defendant in Kansas City, Missouri, as the car was going around a curve. The scene of the casualty was in front of the building of Montgomery Ward & Company, a mercantile establishment employing several hundred people, located at the northeast corner of St. John avenue and Belmont boulevard in said city. The building faced west on Belmont boulevard, a north and south street, and set back toward the east a considerable distance from the east property line of the boulevard. The tracks of the defendant approached the building from the west along St. John avenue, an east and west street, intersecting Belmont boulevard. Defendant maintained a loop track which entered the grounds of the mercantile company at the north end thereof from St. John avenue. The track then ran straight north for some distance along the west side of the building and then turned west across the public sidewalk located at the usual place along the east side of the boulevard. The track curved in such a manner that in crossing the sidewalk the midsection of the north side of the car, or the side on the outer side of the curve, recedes to a point "in over" the south side of the outside rail but the rear end of the car swung out toward the north and projected over the sidewalk five feet four inches beyond the track.

The evidence shows that the car in question had two trucks, one of which was located about seven feet from the front and the other a like distance from the rear end of the car. The overhang of the car proper was the same at both ends. However, there was a fender protruding out from the front end of the car two feet and four inches and, in going around the curve, the front end of the fender extended out to the north nine inches further than the front end of the car proper. The radius of the curve in the track at the place in question was 48 feet on the outside rail and 42½ feet on the inside. In crossing the sidewalk the track was about a foot further north on the west side of the walk than it was on the east side. There was considerable pavement outside of the sidewalk proper where the street car crossed the sidewalk but the sidewalk did not lose its identity as such but continued on to the south and to the corner of the two streets in question.

The evidence on behalf of plaintiff tends to show that she was injured about one p. m. of August 8th, 1927, on a bright clear day; that she and a lady companion had been shopping at the mercantile establishment and had left the same by a door located a considerable distance north of the street car track in question; that they proceeded southwardly along the public sidewalk on the east side of Belmont boulevard intending to go to the southeast corner of the boulevard and St. John avenue to look for a restaurant; that neither one of them was familiar with the situation relative to the curve in the tracks of defendant; that the top of the tracks and surrounding terrain and pavement were practically level, except that the ground sloped slightly toward the south; that her companion was on her right, plaintiff being slightly ahead.

Plaintiff first noticed the street car when it began to turn out from the side of the building of the mercantile company. At this time she was about fifteen feet north of the car. The motorman was then looking at her. At this time plaintiff did not know that the track curved toward the south but thought that the car would proceed straight across the sidewalk. When the front end of the car passed her she and her companion were proceeding southward upon the sidewalk in an "ordinary gait." There was evidence tending to show that the car was proceeding at the rate of three miles per hour and that it could have been stopped immediately going at such a speed.

Plaintiff's evidence further tended to show that she and her companion continued to walk ahead toward the south and the car; that the front end of the car proceeded on over the sidewalk without any bell or gong being sounded and when the front end of the fender of the car passed plaintiff she was about five or six feet from it; that she continued walking; taking two or three more steps, and stopped when about four feet from the side of the car, thinking that she would permit the car to pass her; that at the time she stopped "almost one fourth" of the car had passed her; that she did not move any closer to the car after she stopped; that when she stopped she stood facing the car and turned somewhat to say something to her companion; that the next thing she knew she was struck a violent blow which knocked her down.

Plaintiff testified that she was not paying any attention to the track but her eyes were upon the car; that she was under the impression that the car would go straight ahead; that there was nothing on the sidewalk by way of a mark or sign indicating that the rear end of the car would swing outward. When plaintiff was struck the motorman was in the front vestibule and the conductor was about a quarter of the way up in the car from the rear end. The car went for quite a distance after it struck plaintiff, being in the boulevard headed toward the south when it stopped. After the car stopped both the car men got off and came back.

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