Herschenroeder v. Kansas City, C. C. & St. J. Ry. Co.

• Full Citation: Herschenroeder v. Kansas City, C. C. & St. J. Ry. Co., 278 S.W. 1071 (Mo. App. 1925)
• Decision Date: 07 December 1925
• Citation: 278 S.W. 1071
• Docket Number: No. 15467.,15467.
• Court: Missouri Court of Appeals
• Parties: HERSCHENROEDER v. KANSAS CITY, C. C. & ST. J. RY. CO.

278 S.W. 1071

HERSCHENROEDER v. KANSAS CITY, C. C. & ST. J. RY. CO.

No. 15467.

Kansas City Court of Appeals. Missouri.

December 7, 1925.

Rehearing Denied January 11, 1926.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Walter Herschenroeder against the Kansas City, Clay County & St. Joseph Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John E. Dolman, of St. Joseph, for appellant.

Joseph M. Garvey and Wm. E. Strinfellow, both of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,000, and defendant has appealed.

The facts show that on January 23, 1924, plaintiff was driving an automobile east on Sacramento street in St. Joseph, Mo., when his car was run into by one of defendant's interurban express cars with a freight car attached, proceeding north on Eleventh street. There were double street car tracks on Eleventh street, running north and south. Plaintiff was driving on the south, or right-hand side, of Sacramento street at the rate of about 15 miles an hour. He testified that when he reached Eleventh street he looked north for cars and saw one turning into Eleventh street a block or more north; that this car was required to stop at the railroad crossing, which was between it and plaintiff and 200 feet away; that there was a house at the southwest corner of the intersection of Eleventh and Sacramento streets situated close to the sidewalk; that he had to pass this house before he could see south on Eleventh street; that Eleventh street is very narrow at this point; that when he reached a place where he could see the car approaching from the south he was 12 to 15 feet from the center of Eleventh street; that he then looked and saw the north-bound car, which he estimated to be from 150 to 300 feet away;' that he thought the car was coming at an ordinary rate of speed; that it appeared to him that the car was coming at a moderate rate of speed; that between the curb and the first rail of the south-bound car tracks was a rut or low place in the pavement, the pavement being in bad repair, which required him to slow down to 7 or 8 miles an hour.

Plaintiff further testified that he kept his eye constantly upon the approaching northbound car, thinking that he had ample time to cross in front of it; that he thought defendant's car was traveling at the proper rate of speed; that he knew there was an ordinance governing the operation of street cars approaching street crossings when another vehicle was thereon; that he assumed that if he reached the track first that defendant's car would slow down and give him the right of way; that he would not have deliberately crossed in front of defendant's car because he had the right of way, but he thought that defendant's car was traveling like cars usually did in the city, and that he miscalculated the rate of speed; that he did not realize that defendant's car was coming so fast until it reached a point 25 or 30 feet away, and at that time his wheels were on the north-bound track; that he tried to get out of the way but could not; that he could have turned north, but it would have done no good, because "the speed they were coming they would have hit me in the back." Defendant's car struck the right side of the automobile at a point back of the front wheel and shoved it about 30 to 35 feet before the interurban car stopped. Plaintiff testified that he was familiar with the streets at the point in question, and had traveled them for about 10 years; that he could have stopped his car going at the rate of 7 or 8 miles an hour in 2 or 3 feet; that the car tracks were about 4½ feet apart.

The sole point made by the defendant is that plaintiff was guilty of contributory negligence as a matter of law for the reason that "he knowingly threw himself in the line of danger and knowingly contributed to his own injury." It is pointed out in this connection that plaintiff testified that he was watching the car from the time he first saw it until he was struck. We think there is no merit in this contention. It is well settled that plaintiff had a right to rely upon the fact that defendant's car was not proceeding at a dangerous rate of speed or one in excess of that provided by ordinance, which in this case was 15 miles per hour. Gratiot...