Hogan v. Fleming

• Decision Date: 01 June 1924
• Docket Number: No. 15089.,15089.
• Parties: HOGAN v. FLEMING et al.
• Court: Missouri Court of Appeals

265 S.W. 875

HOGAN v. FLEMING et al.

No. 15089.

Kansas City Court of Appeals. Missouri.

June Term, 1924.

Rehearing Denied July 9, 1924.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by John A. Hogan against Fred W. Fleming and another, receivers of the Kansas City Railways Company. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Kelly, Buchholz, Kimbrell & O'Donnell, of Kansas City, for appellant.

Charles N. Sadler, John R. Moberly, and Roscoe P. Conkling, all of Kansas City, for respondents.

BLAND, J.

This is an action for damages for personal injuries. At the close of all the testimony, the jury, in response to a peremptory instruction, returned a verdict for the defendants. Plaintiff has appealed.

The evidence, taken in its most favorable light to plaintiff, shows that he was a police officer riding in the front seat of a police patrol automobile, driven by a police chauffeur by the name of Pyeatt, about noon of the 16th day of February, 1921. The patrol wagon had a large body mounted on a Packard chassis. The body had printed on each side the words "Police Patrol." It was equipped with a gong and a siren. The siren, when sounded, could be heard for five or six blocks. At the time of the collision of the patrol wagon with one of defendants' street cars, the former was being driven by Pyeatt south on Grand avenue, a north and south street in Kansas City, Mo., astride the west rail of the south-bound street car track, there being double tracks on said street. The patrol wagon was going to Twelfth and Oak streets, in answer to a call, and Pyeatt was blowing the siren intermittently. When the patrol wagon reached Tenth street, a woman started to cross the street in front of it, which required a slowing up of the wagon.

Between Tenth and Eleventh streets on Grand avenue, and about 100 feet south of Tenth street, were located wooden docks constructed to facilitate the loading of passengers on and off street cars, and for the safety and convenience of the public. They constituted safety zones. These docks were from 80 to 100 feet long, 4 feet wide, and 6 inches high, and were opposite each other, one on the west side of the south-bound car tracks, and the other on the east side of the north-bound car tracks. The docks were located close enough to the outside rail so that passengers alighting and boarding cars could step from the dock to the step of the street car and vice versa. Grand avenue, between Eleventh street and Twelfth street, was about 75 feet in width, but the distance between these two streets is not shown in the testimony. The distance between the two docks was 18 or 20 feet. When a northbound street car was in the space between the docks, it would leave a space of about 10 feet between the street car and the west dock. A building was being repaired on the west side of Grand avenue, and a temporary sidewalk had been constructed In the street, adjacent to the regular sidewalk, narrowing the space on the west side of the west dock where vehicles traversed. It was not definitely stated whether this temporary sidewalk was opposite the dock or north of the same, but It so narrowed the space for traffic that only one automobile at a time could go through.

At the time In question there were 20 to 40 people standing on the west dock. The docks were located in the downtown congested part of the city. It was at noon, and a great many people were upon the street, coming and going from department stores in the neighborhood. It was a bright day, and there was a continuous stream of travel at that hour. There were automobiles going north and south on their respective sides of the street, and a pedestrian trying to cross the street would be required to be very careful.

When the patrol wagon passed the north end of the west dock, a man stepped from a point a short distance south of the north end of the west dock into the street, walking in an easterly direction, with his head down, and in front of the patrol wagon. There was testimony that when this man stepped off the dock he was 20 feet away from the patrol wagon, and other testimony that he was 6 to 10 feet away. The driver of the patrol wagon testified that he was proceeding at the rate of 15 to 17 miles an hour, while there was testimony on the part of the defendants that he was going from 35 to 50 miles per hour. However, in order to avoid striking the pedestrian, he swerved his car to the east and ran into the front end of a street car proceeding in the opposite direction, upon the tracks immediately to the east of the center of the street, entirely demolishing the patrol wagon and doing serious injury to the street car, which was at that time going, so the evidence shows, at about 5, 6, or 8 miles an hour. At the time the patrol wagon swerved, it was 15 to 30 feet away from the street car. The collision resulted in injuries to the driver of the wagon and plaintiff. While V; seems that the police chauffeur saved the life of the pedestrian, the former did not prevent the latter's injury, for the reason that, as the front end of the patrol wagon turned and missed him, the rear end swerved around and the side of the wagon struck the pedestrian, causing his injury. The patrol wagon reached the docks before the street car. When the patrol wagon was crossing Tenth street, a traffic policeman at Eleventh street and Grand avenue was blowing his whistle to clear the traffic, so that the patrol wagon would have the right of way.

Defendants' witness Stock testified that he was riding in the vestibule of the street car; that the car had come to a stop before it crossed the intersection of Eleventh street. The motorman testified that he was given the signal to proceed across by the traffic policeman at that street. Stock further testified that the street car was going very slowly, and that he did not hear the siren; that he saw the man step off the loading dock, and at that time said, "That guy is going to get hit;" that the street car continued to proceed; that he noticed the automobile that aferwards struck the man when the street car arrived at a point 5 or 10 feet north of Eleventh street; that the automobile was coming down the west car tracks; that at that time the automobile was at about Tenth street, but that it die not seem to slacken its speed until it struck the street car.

There was other evidence that when the patrol wagon reached "the north end of the dock the street car had not reached the south end, but was near thereto. The street car could have been stopped almost instantly. Plaintiff sought to prove by the chauffeur that at this time he was expecting the car to stop, but, over the objection of the defendants, the court refused to permit plaintiff to make this proof.

An ordinance of Kansas City was introduced in evidence, providing, among other things, that:

"Police, fire departments, fire patrol, United States mail vehicles, and ambulances shall have the right of way in any street.

"That, upon the approach of any fire apparatus, police patrol, or ambulance, every vehicle shall draw up as near as practicable to the right curb of the street and remain at a standstill until such apparatus, patrol, or ambulance shall have passed.

"The driver of a street car shall immediately stop his car and keep it stationary, upon the approach of any fire apparatus.

"Section 6. Street Cara. Street cars shall have the right of way, between cross streets, over all other vehicles, except as provided in section 5."

The ordinance made other provisions in reference to signal devices upon vehicles which prohibited the use of a siren, except on public ambulances, fire and police vehicles, and those required to respond to emergency calls.

There was testimony—in fact, it is undisputed—that it was the custom for operators of street cars, upon hearing the approach of a fire or police vehicle or ambulance, to give it the right of way by bringing the street car to a stop. The motorman, testifying for the defendants, stated that there was such a custom, and that the defendants gave their motormen a book of printed rules which instructed their motormen to stop their cars when they should hear a police or other siren. He further testified that whenever he heard a siren it was his custom to stop his car, and that, if he had heard the siren in this instance, he would have immediately brought his car to a stop upon first hearing it. There was ample testimony tending to show that the motorman could have heard the siren, had he been attentive. The testimony shows that he could have heard it for several blocks. It was being sounded intermittently, and especially at Tenth street, where a woman attempted to cross the street. There were witnesses who were standing near the place of the collision who heard the siren as the patrol wagon approached.

We think that the court erred in sustaining the demurrer to the evidence. Under the provisions of the ordinance introduced in evidence, there is no question but that the patrol wagon had the right of way over the street car. The ordinance seems to expressly require a street car to come to a stop upon the approach of a fire apparatus, but noes not mention police vehicles in this connection. However, there was a custom shown requiring street cars to come to a stop under the circumstances, and we think that, even under the ordinance, the motorman was guilty of negligence that contributed proximately to plaintiff's injury. The ordinance, requiring all vehicles except street cars, which run upon fixed tracks, to draw to the curb and remain at a standstill while a police patrol vehicle is passing, contemplates that such vehicle shall occupy the center of the street and, aside from this, there was a custom shown for patrol wagons to drive in the center of the street.

Here was a street that had been partially obstructed for vehicular traffic by reason of the fact that docks had been...