Heryford v. Spitcaufsky

• Decision Date: 31 December 1917
• Docket Number: No. 12444.,12444.
• Citation: 200 S.W. 123
• Parties: HERYFORD v. SPITCAUFSKY et a
• Court: Missouri Court of Appeals

200 S.W. 123

HERYFORD v. SPITCAUFSKY et a

No. 12444.

Kansas City Court of Appeals. Missouri.

December 31, 1917.

On Rehearing, January 28, 1918.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially published."

Action by John Heryford, an infant, by J. O. Heryford, his next friend, against John Spitcaufsky and another, copartners doing business as Spitcaufsky Bros. Judgment for plaintiff, and defendants appeal. Affirmed.

Gage, Ladd & Small, of Kansas City, for appellants. Griffin & Orr, of Kansas City, for respondent.

BLAND, J.

On the 1st day of April, 1915, plaintiff, while riding a motorcycle southward on Grand avenue in Kansas City, Mo., collided with an automobile being driven by defendant Charles Spitcaufsky, at the intersection of Twenty-Fourth street and Grand avenue in said city. In his petition plaintiff alleged that defendant saw or could have seen plaintiff in a position of peril in time, by the exercise of ordinary care, to have stopped, etc., and further pleaded an alleged violation of the statutes of Missouri in relation to the manner and speed at which a motor vehicle may be driven, and an alleged violation of Ordinance 9261, of Kansas City, Mo., prescribing rules of the road. The petition further alleged that section 26 of said ordinance provided that:

"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."

And section 52 thereof provided that:

"Every person operating a motor vehicle on the public streets, boulevards or parkways or park roads within the city, shall 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."

Defendants make the point that a demurrer to the evidence should have been sustained.

The undisputed evidence shows that the collision took place about noon on the day in question, that the streets were dry, the day a bright one, and there was nothing to obstruct the view of either plaintiff or said defendant. Twenty-Fourth street at the intersection of Grand avenue is 50 feet from property line to property line. Grand avenue is 100 feet from property line to property line. The remaining evidence is very conflicting, but taken in its most favorable light to plaintiff it shows that said defendant was driving in the center of Grand avenue and approaching Twenty-Fourth street from the south at a rate of speed of from 5 to 6 miles an hour; that he proceeded northward until he reached a point 11 feet south of the center of Twenty-Fourth street; that at that point he turned to the west on the latter street and proceeded on the south side of the east and west center line thereof at the same rate of speed until he reached a place 3 or 4 feet from the west curb of Grand avenue; that at this point a collision occurred between plaintiff and said defendant by the motorcycle of the former running into the front fender of defendants' automobile; that the point of collision was 9 feet south of said center line of Twenty-Fourth street; that after the collision the driver of the automobile proceeded about 10 feet before his car was brought to a stop. The evidence further shows that plaintiff was approaching Twenty-Fourth street on the west side of Grand avenue from the north, riding his motorcycle, and when he reached the north line of Twenty-Fourth street he was proceeding at the rate of 10 miles per hour; that at this point he slowed up and looked both east and west on Twenty-Fourth street, and he says that he did not see defendants' automobile; at this point he was 5 to 7 feet from the west curb of Grand avenue. He then speeded up and proceeded from this point to the point of collision at the rate of from 5 to 10 miles per hour, looking directly ahead.

Plaintiff did not see defendants' car until the same was within 10 feet to the east of plaintiff, and at this time plaintiff did everything he could to stop his motorcycle, but was unable to do so before the collision. The defendant Charles Spitcaufsky testified that he saw plaintiff 200 feet north of Twenty-Fourth street, and that he saw him both at the times he slowed up and speeded up. The only evidence in the record as to what distance the automobile could have been stopped at any given rate of speed was that it could have been stopped within 10 feet, going at the rate of 5 or 6 miles per hour.

We think that when plaintiff speeded up his motorcycle to cross Twenty-Fourth street it was the duty of the driver of the automobile to anticipate danger, and consequently to use all means to avert the accident. Plaintiff introduced no direct evidence as to exactly where the automobile was at this time, but there are circumstances brought out in the evidence from which the jury could find this fact. Taking the evidence on this point in its most favorable light to plaintiff, we may assume that from the time plaintiff speeded up his motorcycle until the collision he passed over 34 feet of space. This is arrived at by the fact that Twenty-Fourth street is 50 feet in width and from the north line thereof to the center would be 25 feet, and the collision occurred 9 feet south of the center, making 34 feet in all; we also may assume that plaintiff rode over this 34 feet at the rate of 5 miles per hour. We may also assume that from the time plaintiff speeded up until the collision the driver of the automobile was likewise proceeding at the rate of 5 miles per hour, and the conclusion is that as plaintiff covered 34 feet the automobile likewise covered 34 feet from the time the driver of the latter saw plaintiff speed up to cross Twenty-Fourth street. Under these facts the driver of the automobile had 34 feet within which to stop after seeing the danger, and he could have stopped within 5 or 6 feet. The facts show that he not only did not stop in the 34 feet, but proceeded 10 feet farther before stopping, or that he ran 44 feet in all. If we assume that the driver of the automobile was going at the rate of 6 miles per hour, then he had even a greater distance in which to stop. We think these facts make out a case of negligence in favor of plaintiff.

But defendants argue that plaintiff was negligent, and that it was his negligence and not that of the driver of the automobile that caused the injury. This argument is based upon the assumption that when plaintiff slowed up and looked to the east he saw the automobile approaching on Twenty-Fourth street from the east, and at that time it was the duty of plaintiff to have taken some means to have avoided the accident, whereas the evidence shows that nothing was done by plaintiff toward stopping his motorcycle until the automobile was within 10 feet to the east of him.

We see no merit in this contention. In the first place plaintiff said that he did not see the automobile at all, and he certainly was under no obligation to anticipate that defendant would cross Grand avenue by proceeding westward on Twenty-Fourth street on the south, or wrong, side thereof, and this is true, even though we assume that plaintiff did see the automobile at the time he looked and saw it proceeding at the very slow rate of 5 miles per hour. It was not the duty of plaintiff to anticipate that the driver of the automobile would wrongfully proceed westward on Twenty-Fourth street on the wrong side of the street, but after plaintiff speeded up to cross Twenty-Fourth street it was his duty only to anticipate vehicles coming from the east on the north side of Twenty-Fourth street and not on the south side of said street. He also was burdened with the further duty of looking in front of him in the direction in which he was going.

Plaintiff testified that after he started up to cross Twenty-Fourth street he was looking directly in front of him. On the other hand, it was the duty of the driver of the automobile to look north of Twenty-Fourth street on the west side of Grand avenue for vehicles approaching and crossing Twenty-Fourth street to the south, and if he saw any such vehicle, such as occurred in this case, it was his duty to stop his automobile in the shortest space possible after the appearance of danger. It was incumbent upon the driver of the automobile to use far more care in driving his automobile on the wrong side than if he were driving it on the proper side of the street. For these reasons we also overrule defendants' contention that plaintiff was guilty of contributory negligence as a matter of law. In this connection it may be stated that plaintiff under the motor vehicle statute touching the...