Harris v. The Kansas City Public Service Company

• Decision Date: 11 April 1931
• Docket Number: 29,643
• Citation: 297 P. 718,132 Kan. 715
• Parties: OPAL HARRIS, Appellee, v. THE KANSAS CITY PUBLIC SERVICE COMPANY, Appellant
• Court: Kansas Supreme Court

297 P. 718

132 Kan. 715

OPAL HARRIS, Appellee, v. THE KANSAS CITY PUBLIC SERVICE COMPANY, Appellant

No. 29,643

Supreme Court of Kansas

April 11, 1931

Decided January, 1931.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. STREET RAILROADS--Injury to Pedestrian--Right to Rely on Signal from Motorman. The motorman of a street car has neither authority nor duty to direct pedestrian traffic at an intersection of city streets on which are double railway tracks. A signal given by him to a pedestrian that she could safely cross in front of his standing car did not carry with it any assurance upon which she could rely that after passing between the front of his street car and the rear of another street car four feet ahead of it she could safely cross the parallel track upon which another street car was moving in the opposite direction.

2. SAME--Injury to Pedestrian--Contributory Negligence. Plaintiff, a pedestrian, sought to cross from south to north on a busy street on which were parallel tracks running east and west. On the south track were a number of standing street cars headed eastward. In the sidewalk lane where plaintiff wished to cross was a space of four feet between the rear of one street car and the front of the one next to it. Plaintiff passed between these two street cars and without looking to see if she might safely proceed further she stepped on the north track and was immediately struck by a west-bound street car. Held, notwithstanding the negligence of the motorman of the west-bound car as found by the jury, plaintiff was guilty of contributory negligence which defeats a recovery against the street-car company--following Railway Co. v. Ryan, 69 Kan. 538, 77 P. 267, and other cases cited in the opinion.

Edwin S. McAnany, Maurice L. Alden and Thomas M. Van Cleave, all of Kansas City, for the appellant.

David F. Carson, of Kansas City, and Walter W. Calvin, of Kansas City, Mo., for the appellee.

Dawson J. Sloan, J., not participating.

OPINION

DAWSON, J.:

This was an action for damages for injuries sustained at a street crossing when plaintiff was struck by one of defendant's street cars.

The accident happened at the intersection of Twelfth and Walnut streets in Kansas City, Mo. Walnut street runs north and south and Twelfth street runs east and west. On both streets are double railway tracks on which defendant's street cars are operated.

On the evening of November 21, 1928, plaintiff was at the southwest corner of Twelfth and Walnut streets and desired to cross to the north side of Twelfth street. She looked to see if she could discover a traffic policeman who would give the signal when it was safe for her to cross, but no officer was in sight at that moment. On the south railway track on Twelfth street several street cars were standing, headed eastward. One of these cars was projected almost its full length into Walnut street. Behind it a second car was standing so that its front end was in the sidewalk lane where pedestrians should cross on the west side of Walnut.

According to plaintiff's testimony, when she failed to locate a traffic policeman she happened to notice the motorman on defendant's second car. He nodded his head and beckoned to her to cross, and she started to do so. She passed the front of this second street car and at the rear of the one ahead of it. The space between these two street cars was about four feet. The moment after she passed between these two street cars and took one step beyond, she was struck by another of defendant's street cars going west. She fell into the basket and was carried some distance, receiving certain injuries.

In this action, which followed, plaintiff charged negligence in various particulars, including the failure of the motorman who had beckoned her to warn her of the approach of a street car on the west-bound track, the failure of the motorman on the west-bound street car to ring a bell or give other warning of his coming, and the operation of the west-bound car at a high and dangerous rate of speed.

Defendant's answer contained a general denial and a plea of contributory negligence.

The jury returned a verdict in favor of plaintiff for $ 3,000 and answered several special questions:

"Q. 1. Was the east-bound trolley car, in front of which plaintiff passed before she was struck by a west-bound car, standing with its front door open at the time she passed, receiving and discharging passengers? A. Yes.

"Q. 2. Was there one of defendant's east-bound Twelfth street cars standing in the intersection of Walnut street with other cars ahead of it extending east within four or five feet of the front end of the car in front of which plaintiff passed north before she was struck? A. We believe so.

"Q. 3. Did the plaintiff, after she passed in front of the standing east-bound Twelfth street car on the west side of Walnut street, stop or look to the east to see whether any west-bound trolley car was approaching? A. No.

. . . .

"Q. 5. At what rate of speed was the car that struck the plaintiff approaching at the time the motorman first saw her before the collision? A. Approximately six to ten miles per hour.

"Q. 6. How far west of the west building line of Walnut street was the plaintiff at the time the west-bound Twelfth street car collided with her? A. We believe she was in the sidewalk lane.

. . . .

"Q. 8. If you find a verdict for the plaintiff, state specifically each act of negligence the defendant was guilty of that caused her injury. A. No warning signal by west-bound car and failure of operator to properly watch sidewalk lane for pedestrians and approach lane under control. East-bound operator indicated by signal passage way was clear for plaintiff.

"Q. 9. Did plaintiff at any time before being struck, look for an approaching car from the east? A. No.

. . . .

"Q. 11. When plaintiff was approximately two feet away from the south rail of the west-bound street-car track, how far distant was the west-bound street car which struck her? A. We believe car was just entering sidewalk lane."

Judgment was rendered on the general verdict and defendant appeals, assigning various errors--the ruling on the demurrer to plaintiff's evidence, admission of incompetent testimony, instructions given and refused, and the overruling of defendant's motion for judgment on special findings of the jury.

It may shorten our task to note first the defendant's complaint about the instructions. The trial court refused defendant's request that the jury be instructed that from the signal given by the motorman of the east-bound street car on the south track the plaintiff was not warranted in assuming that no car was coming on the north track in the opposite direction. Her testimony was that there was a line of street cars standing on the south track headed east, that in the sidewalk lane where she wished to cross was a space of about four feet between two of these street cars, and that people were passing between them.

"I looked up and glanced at the motorman to see that he didn't start up and catch me between those street cars and he was motioning to go on.

. . . .

"A. . . . I looked up and seen him motion me across and so I stepped out and walked across.

. . . .

"Q. You mean he waved his hand in a certain direction? A. Yes, sir.

. . . .

"Q. Tell the jury if he nodded his head. A. Yes, he was nodding his head at the same time, like that (indicating) as he was motioning to me to cross."

There was no testimony that the motorman of that east-bound street car was charged with the duty of directing pedestrian traffic. His signal to plaintiff could mean no more than an assurance that he would not start his car and catch her while she was passing between his car and the one four feet in front of it. Such was plaintiff's own testimony of what she understood by his signal. The motorman had no duty to protect her against west-bound traffic which she would have to cross the moment she passed between the eastbound street cars on the south track. The motorman was in no better position to observe the west-bound traffic than she was. He was standing on the higher level of the floor of the street car while she was on the ground level, but the street car four feet in front cut off his range of vision towards the east just as effectively as it did hers. Therefore some instruction formulated to include that point should have been given as requested. The instruction which the court did give was to the effect that it was the duty of plaintiff to look and listen for the oncoming west-bound street car, and if she failed to do so she would be guilty of negligence; but that she would not be guilty of contributory negligence if the motorman of the east-bound street car signaled her to proceed across the street and if she relied upon such signal under the belief that there was no danger from an approaching west-bound car, unless such a danger was obvious to a prudent person. This instruction was based on the assumption that the motorman who signaled plaintiff had some duty to look out for pedestrians like plaintiff at that street intersection. His duty was to operate his own street car in a proper way so as not to injure pedestrians or other traffic having the same right to use the street as the defendant corporation. He had no duty to protect her against injury from other street cars on parallel tracks. The defendant company could not confer such...