Hogan v. Fleming

• Decision Date: 25 June 1927
• Docket Number: No. 26469.,26469.
• Citation: 297 S.W. 404
• Parties: HOGAN v. FLEMING et al.
• Court: Missouri Supreme Court

297 S.W. 404

HOGAN v. FLEMING et al.

No. 26469.

Supreme Court of Missouri, Division No. 1.

June 25, 1927.

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. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Chas. N. Sadler and John R. Moberly, both of Kansas City, for appellants.

George H. Kelly, William Buchholz, Isaac B. Kimbrell, and Martin J. O'Donnell, all of Kansas City, for respondent.

SEDDON, C.

This cause comes to the writer for opinion upon a reassignment. It is an action to recover damages for personal injuries alleged to have proximately resulted from the negligence of an employee of defendants (who at the time were the duly appointed receivers of the Kansas City Railways Company, a corporation) in the operation of a street car upon a public street in Kansas City. This is the second appeal in the cause. The first trial resulted in a directed verdict and judgment for defendants. Plaintiff appealed to the Kansas City Court of Appeals, resulting in an opinion and judgment of that court reversing the judgment nisi and remanding the cause for a second trial. Hogan v. Fleming, 218 Mo. App. 172, 265 S. W. 875. Prior to the second trial, the petition was amended by increasing the amount of damages prayed from $7,500 to $50,000. The second trial resulted in a verdict and judgment for plaintiff in the sum of $15,000, from which the defendants were allowed an appeal to this court.

The evidence tends to show that, on February 16, 1921, the date of plaintiff's injury, plaintiff was a policeman, and, pursuant to his duties, he was responding to a call for a police patrol automobile sent in over the telephone to police headquarters. He was riding on the front seat of the police patrol automobile, which was driven and operated by a police chauffeur, one Pyeatt. The automobile was a left-hand drive, so that the chauffeur sat upon the left side of the front seat and plaintiff sat upon the right side of such seat. It was no part of plaintiff's duty to operate the automobile or to select the route to be traveled in responding to a call. The police patrol consisted of a large Packard chassis, upon which was placed a covered body. The words "Police Patrol" were painted upon the two sides of the automobile. Both plaintiff and the chauffeur were wearing the regulation police uniform. The police patrol was equipped with two signal devices, a gong and a siren. The sound of the siren is described in the record as a "screaming whistle," or shrill noise, and several witnesses testified that the sound of the siren could be heard a distance of from two to four or five city blocks. The police patrol was proceeding south upon Grand avenue, a public street in the business district of Kansas City, having entered Grand avenue at Seventh street, and the casualty occurred in the city block between Tenth and Eleventh streets. The police officers were directed to go to the corner of Twelfth and Oak streets, located approximately two blocks south and two blocks east of the place of the casualty. Grand avenue is a north and south street, the roadway proper being approximately 69 feet in width from curb to curb. Along the middle of the roadway, the defendants operated a street railway, consisting of two parallel tracks. The southbound street cars used the west track and the north-bound cars used the east track. The distance between the outer rail of each track and the nearest street curb was approximately 24 feet 8 inches, so that the distance between the outer rails of the two car tracks was approximately 19 feet 8 inches. For some time prior to the casualty there was used in the operation of the street railway, in the block on Grand avenue between Tenth and Eleventh streets, two wooden platforms, or "loading docks," so-called, one platform being adjacent to the outside rail of the west car track and the other platform being adjacent to the outside rail of the east car track. These platforms served as safety zones, upon which prospective street car passengers stood while waiting to board the cars, and upon which passengers alighted when leaving the cars. The testimony is contradictory as to their exact size and relative locations upon the street. Plaintiff's witnesses testified that they were from 80 to 100 feet in length, 3 to 4 feet in width, and extended some 6 to 8 or 10 inches above the street pavement. Some of the witnesses testified positively that the loading platforms were located directly opposite each other, while other witnesses were equally positive in their testimony that the east platform was located some distance north of the west platform, and that the distance between lines drawn at right angle to the south end of the east platform and to the north end of the west platform was from 40 to 75 feet; in other words, that the south end of the east platform was from 40 to 75 feet north of the north end of the west platform. Plaintiff's witnesses fixed the location of both loading platforms as nearer Tenth street than Eleventh street, placing both platforms in the north half of the block. On the other hand, defendants' witness Bales, purporting to testify to actual measurements made by him, fixed the south end of the west platform as distant some 40 or 50 feet north of the north property line of Eleventh street, and the north end of the east platform as distant some 15 feet south of the south property line of Tenth street. The length of the block on Grand avenue between Tenth and Eleventh streets is not shown in the record. There is some testimony on behalf of plaintiff that a building was undergoing construction or repair on the west side of Grand avenue, and a temporary walk had been laid in the street, thereby obstructing vehicular traffic on the west side of the street. It is not clearly or definitely shown in the record whether this temporary walk lay north of the west loading platform, or whether it lay between the platform and the west curb, but there is testimony that the temporary walk so obstructed south-bound vehicular traffic as to permit but one vehicle at a time to pass between the west loading platform and the west curb. The foregoing is a fairly accurate description of the locus in quo, as we gather it from the record.

The casualty occurred on a clear day, during the noon hour, about 12:30 or 12:45 o'clock. The police chauffeur testified that there were some 25 to 40 persons standing upon the west loading platform, and there was testimony that a number of pedestrians were walking upon the sidewalks on both sides of Grand avenue and that there were a number of automobiles traveling on both sides of the roadway. Both plaintiff and the police chauffeur testified that, upon entering Grand avenue and proceeding south from Seventh street the automobile siren was blown intermittently, two or three times to each block; that the police automobile was being driven along the west, or south-bound, railway track, with the wheels of the automobile astride the west track; that it was customary to drive the police patrol along the right-hand car track in making a run and responding to a call; that, when the automobile was nearing Tenth street a woman started to cross Grand avenue, and the automobile was slowed down almost to a standstill and the driver sounded the siren twice before the woman stepped back out of its way; that the siren was sounded four or five times south of Ninth street; that, when the automobile was at, or closely approaching, the north end of the west loading platform, a man suddenly stepped off the north end of the west loading platform and took two or three steps to the east, with his head down and apparently oblivious of his danger, directly into the path of the oncoming police patrol; that the man was from 10 to 20 feet distant from the automobile when he stepped from the platform; and that the driver of the police automobile, upon observing the man, sounded the siren as a warning, but the approaching automobile was then so close to the man that it appeared impossible to stop the automobile to avoid striking him, whereupon the driver of the automobile suddenly swerved or veered the automobile to the left, or east, and immediately collided with the left front corner of defendants' north-bound street car, which was approaching on the east railway track. Plaintiff's witnesses testified that the distance between the two loading platforms was 18 or 20 feet, and, when there was a street car on the east track, the distance between the street car and the west loading platform was 10 or 12 feet. The speed of the automobile just prior to the collision was given by plaintiff and the chauffeur at 12 to 17 miles an hour, while other witnesses estimated its speed at 35 to 50 miles an hour. The street car, just prior to the collision, had been traveling at a speed of 5 or 6 miles an hour, and, according to several of the witnesses, had about come to a stop. Defendants' motorman testified that he was making the stop for the east, or Tenth street, platform, and that the police automobile was 15 or 20 feet distant from the front end of the street car when the automobile veered to the left, or east, to avoid striking the pedestrian. Notwithstanding the effort made by the police chauffeur to avoid striking the pedestrian the rear end of the police patrol struck and injured him. The automobile was practically demolished by the collision, and both plaintiff and the chauffeur were thrown through the windshield of the automobile upon the street pavement and suffered injuries therefrom.

There is some evidence that, at the time the police patrol reached the north end of the west loading platform, the street car was nearing, but had not yet reached, the south end of the west platform. Defendants' motorman testified that he had entirely passed the west loading platform...