Guffey v. Harvey

• Decision Date: 02 July 1915
• Docket Number: No. 11645.,11645.
• Parties: GUFFEY v. HARVEY et al.
• Court: Missouri Court of Appeals

179 S.W. 729

GUFFEY v. HARVEY et al.

No. 11645.

Kansas City Court of Appeals. Missouri.

July 2, 1915.

Rehearing Denied October 4, 1915.

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

"Not to be officially published."

Action by Marcus L. Guffey against Ford F. Harvey and another, receivers of the Metropolitan Street Railway Company. From a judgment for plaintiff, defendants appeal. Reversed.

John H. Lucas and Lyons & Smith, all of Kansas City, for appellants. E. C. Hall and T. V. Conrad, both of Kansas City, for respondent.

JOHNSON, J.

Plaintiff was injured on a public street in Kansas City in a collision between an electric street car operated by defendants and a wagon in which he was driving, and sued to recover damages on the ground that his injury was caused by negligence of defendants in the operation of the car. The jury returned a verdict in his favor, and after their motions for a new trial and in arrest of judgment were overruled, defendants appealed.

The injury occurred in the morning of July 12, 1913, at or near the intersection of Independence and Quincy avenues. Defendants operate a double-track street railway on Independence avenue, a public street which runs east and west and is 60 feet wide. Plaintiff drove eastward on the south side of the street, in a one-horse delivery wagon, until he reached Quincy avenue, when he turned northward, and proceeded to drive across the tracks. He had almost cleared the south track, when an east-bound car running thereon collided with the rear end of the wagon and threw him from his seat. The first cross-street west of Quincy avenue was about 300 feet distant, and was on the top of a hill. Plaintiff testified that immediately before starting to cross the tracks he looked back and observed that no car coming from that direction was in sight.

"I looked when I was pulling from the curb," he said, "and saw no car, and the horse must have been over to the first set of rails when I heard something, and I turned my head around that way and the car was right on me, and I touched my whip a little bit, and the car came up, and it just caught the hind wheel — the end of the wagon. * * * In my judgment, it was 35 or 40 feet when I saw the car."

It had been raining, and plaintiff was seated under a wagon umbrella. He admits he looked back only twice, and in the interval his horse, which was traveling at a speed of about 4 miles per hour, did not traverse more than 35 or 40 feet. The car in that time, according to his testimony, must have covered a distance of about 275 feet; since, when he first looked, it had not reached the top of the hill, and when he looked again was only 35 or 40 feet away. It is conceded the car coasted down the hill, and no witness who observed it testified that its speed exceeded 15 miles per hour. The motorman, introduced as a witness by defendants, testified:

That the speed of the car down the hill was about 8 miles per hour; that he observed plaintiff driving eastward along the middle of the pavement on the south side of the tracks; that suddenly and without warning plaintiff turned northward towards the tracks, when the car was only 20 or 25 feet away, and attempted to cross in front of the car; and that "as soon as I saw he was going to turn I applied my air on the emergency immediately. Before I stopped I run after I struck the wagon about 6 feet. I don't think I went over 6 feet after I struck the wagon."

A witness introduced by plaintiff who saw the accident stated:

"The man [plaintiff] was driving down the south side of the street, and I think he was hunting for No. 5000 [at the northeast corner of Independence and Quincy avenues], and at the same time was a car coming, and just as it dropped over the top of the hill this man turned at right angles across the street; * * * it [the car] must have been a car length this side of the street (at the top of the hill), just dropped over the line; it might have been just then, but the car was about there when I noticed this man turn, * * * at the extreme east line of Quincy. * * * Q. About how fast would you estimate that car was traveling coming down the hill from Brighton to Quincy? A. I couldn't say. Q. Was it going fast or slow? A. He didn't have any power on; no power at the time. Q. About how far did the car run past after it hit the wagon, if you noticed? A. It didn't run past but just a little ways. It stopped almost instantly after it hit the wagon."

On cross-examination:

"Q. What did you see the man do there with reference to stopping the car? A. I think he done his best. The tracks were very slick that morning, as we had a little rain; they were a little damp. Q. It appeared to you there that he was exercising every...