Hammond v. Emery-Bird-Thayer Dry Goods Co.

• Citation: 240 S.W. 170
• Decision Date: 08 April 1922
• Docket Number: No. 22803.,22803.
• Parties: HAMMOND v. EMERY-BIRD-THAYER DRY GOODS CO.
• Court: United States State Supreme Court of Missouri

240 S.W. 170

HAMMOND v. EMERY-BIRD-THAYER DRY GOODS CO.

No. 22803.

Supreme Court of Missouri, Division No. 1.

April 8, 1922.

Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.

Action by John H. Hammond, Jr., against the Emery-Bird-Thayer Dry Goods Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Reed & Harvey, of Kansas City, for appellant.

A. L. Berger and Morrison, Nugent, Wylder & Berger, all of Kansas City, for respondent.

SMALL, C.

I. Plaintiff was injured at the intersection of Troost avenue and Armour boulevard in Kansas City, in a collision between his auto truck and the auto truck of the defendant. Troost avenue is a north and south street, 100 feet wide between the property lines, with a 40-foot roadway between the curbs. It has a double-track street railway upon it. The cars run south on the west track and north on the east track. The tracks are located in the center of the roadway, and it is 15 feet between the outside rails of the tracks. Armour boulevard is an east and west street, also 100 feet wide between the property lines, with a 40-foot roadway between curbs, and has no street cars upon it. The plaintiff bad been driving south on the west side of Troost avenue for several blocks. Murray Elsworth was plaintiff's driver, and he sat on the left, Miss Greer in the center, and plaintiff on the right side of the one-seated Ford truck. When they reached Armour boulevard, a south-hound street car discharging passengers was standing with its front about the north line of the boulevard. The street car was probably 40 feet long, and plaintiff stopped his car 10 feet north of the rear or north end of said street car. Plaintiff and. Elsworth testified that they waited until the street car had discharged all its passengers and had crossed over Armour boulevard going south, and then they started south with the intention of turning and going east on the boulevard; that they drove south until they passed a few feet south of the center of the boulevard, and then they turned east, and the center of their car was struck by the truck of the defendant which was coming north on the east side of Troost avenue, about 4 or 5 feet east of the east rail of the east street car track.

Plaintiff, Hammond, testified:

"We had cleared the center of Armour boulevard when we made the turn east on Armour. We made a square turn and straightened out going east when we saw the other truck coming. I did not say anything, and I noticed Murray, and he started to stop. We turned east before we saw the Emery-Bird truck, and the front wheels of our truck had cleared the east street ear track. The Emery-Bird truck wan about 75 or 100 feet south of Armour when I first saw it. Elsworth began to stop the car as we cleared the east track. We first saw the Emery-Bird truck when our wheels were on the west track, and after we saw it and young Elsworth began to stop, it increased its speed, and, when about 15 feet away from us, it swerved to the east. It was a Pierce-Arrow, and when it made the swerve it was going about 30 or 35 miles an hour. I am familiar with the speed and am able to judge the speed of a machine. It was on the east side of the street going north about 2 feet from the car track. It could have been stopped within 35 or 40 feet. When I first saw the Emery-Bird truck, it was going about 25 miles an hour, and at that speed it could have been stopped within 20 feet. When I first saw defendant's truck the street car had cleared Armour boulevard and was possibly 125 or 150 feet from the car. By the collision the springs of defendant's truck became embedded in our truck at its center. The street car had gotten clear across Armour boulevard before our Ford truck started. All that time we were standing still. The accident occurred about 3:30 in the afternoon. When we first saw defendant's truck approaching, we were going about 10 miles an hour, and I could have stopped the car in about 6 or 8 feet. Mr. Elsworth started to stop, although he had not started to stop before that time. Our wheels were across the east track when the collision took place. The other car, when I first saw it, was 75 or 100 feet away, and as it approached the driver increased his speed. In my deposition I testified when I first saw defendant's truck the front wheels of our truck were on the west track. That is the truth as I remembered it at the time my deposition was taken. The boy was driving the car for me and was under my charge and direction. I was talking to the young lady and letting Elsworth drive the car. Although I was paying no particular attention, I am positive that he got past the center before turning east. When the collision occurred the front wheels of our truck had cleared the east rail of the east track. The back part of our car had not cleared the east track. The defendant's truck was east of the car tracks all the time."

On redirect examination plaintiff said:

"When I first saw the other truck we came south, made a square turn and our wheels were on the south-bound or west track."

As to the right of way plaintiff testified:

"I realize that people driving on Troost avenue had the right of way over people driving on Armour or turning into Armour. On the date of the accident, March 29, 1918, the Armour boulevard traffic had the right of way, although since then I believe it has been changed."

Murray Elsworth testified for plaintiff:

"Our front wheels were between the rails of the west car track when I first saw defendant's truck, 75 or 100 feet away, and we were going about 10 miles an hour at that time, and I could have stopped that car at that time and place in 5 or 6 feet. I started to stop it. I put my foot right on the brake. I saw the man coming, and started to stop, and I saw that he was 75 feet from there—that is, when I started across the track first. At the time I had gotten across the track or a little further I had noticed that he would hit me and I started to stop again. Q. In other words, you tried to get across in front of him? A. In other words, I tried to get across in front of him. Q. Let's get this straight. You say, when your car was on the south-bound track, you saw him 75 or 100 feet away? A. Yes, sir. Q. That is, when you started to stop? A. That is, when I first thought of it. Q. And did you not, in response to Mr. Harvey's question, say that you saw he was coming so fast that he would hit you unless he went in back of you? A. No, sir; I did not. Q. You didn't make that statement? A. No, sir. Q. Now from the first time you saw him, whether you stopped or started to stop, you did go on east? A. Yes, sir. Q. And your front wheels had gotten across the east rail of the north-bound track when the collision took place? A. Yes, sir. Q. And the rest of your car then was on the street car tracks? A. Yes, sir. The rear wheels, I would judge, were between the rails on the north-bound track. The seat I was sitting on was just a little bit past the east rail of the north-bound track. Defendant's truck, when I first saw it, was right next to the east rail, but was 4 or 5 feet away after it swerved. Q. Now from the time you started to turn east until the collision took place, how far did you travel? A. I traveled across the four rails, about 20 feet, I would judge. Q. And you could have stopped it in 6 feet? A. Yes, sir. I turned to the west a little on Armour boulevard away from the track to make a square turn and the car was on a slight angle, just a little south of the center of Armour boulevard, when I started to cross the track in order to turn and go straight east, started to turn before got to the center of Armour boulevard."

Witness also said that when he first saw defendant's truck it was going 30 or 35 miles an hour and thereafter seemed to pick up speed.

Plaintiff also introduced an ordinance of Kansas City requiring all persons operating a motor vehicle in the city to drive—

"the same in a careful and prudent manner and at a rate of speed that shall not endanger the property of another or the life or limb of any person or persons, provided that driving in excess of the following rates of speed for a distance of more than 200 feet shall be presumptive of driving at a rate of speed which is not careful or prudent * * * 20 miles per hour upon all other streets * * * within the limits of Kansas City, Missouri, * * * provided, however, that in passing any street intersection * * * the rate of speed for driving shall not exceed ten miles per hour, when any person or vehicle is upon said intersection. * * *"

The defendant's evidence tended to show that plaintiff started to cross Troost avenue behind the street car, and that the collision took place right at the north curb line of Armour boulevard, or 25 feet north of that point; that defendant's car crossed the intersection going 10 or 12 miles an hour, and defendant's driver did not see the plaintiff's truck until he had about crossed the intersection. Defendant also introduced an ordinance of Kansas City which provided:

"Sec. 14. Turning to the Left.—A vehicle when turning to the left to enter an intersecting street shall not turn until it shall have passed beyond the center of such intersecting street. * * *

"Sec. 39. Right of Way.—Whenever vehicles approaching each other on different streets shall reach the intersection of such streets at the same time the vehicle proceeding on the street north and south shall have the right of way unless such east and west street is a boulevard or a street on which car tracks are located, in which event, the vehicle proceeding on the boulevard or street on which said street car tracks are located shall have the right of way. But every such vehicle shall be kept under control so as to prevent danger of collision."

The court gave the following instruction for the plaintiff:

"(1) The court instructs the jury that, if you believe from the evidence that the automobile in which plai...