Jepson v. Shaw Transfer Company
| Decision Date | 12 June 1922 |
| Parties | ELSEBETH JEPSON, Respondent, v. SHAW TRANSFER COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.
AFFIRMED.
Judgment affirmed.
T. J Madden, Harry R. Freeman and W. H. Senner for respondent.
Guthrie Conrad & Durham and Hale Houts for appellant.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 7400 and defendant has appealed.
The facts show that on November 27, 1919, plaintiff, a woman thirty-nine years of age, was riding with her husband and others in a Ford automobile, going in a southwesterly direction on Southwest Boulevard near its intersection with Broadway, both being public streets in Kansas City, Missouri. When the Ford car reached Broadway it was run into by a taxicab owned by the defendant, resulting in serious injury to plaintiff. The petition charges negligence against the defendant in that (1) the taxicab was being driven on the wrong side of Broadway in violation of the ordinance; (2) that the taxicab was being operated at a high and dangerous rate of speed; (3) failure to give warning of the approach of the taxicab; (4) failure to avoid striking the Ford car by using the means that the taxicab driver had at his command to stop his car or slacken the speed thereof, or to give a signal or swerve the taxicab aside after the driver thereof saw or could have seen that a collision was imminent, and that plaintiff was oblivious to the danger "or in helpless peril thereof."
Defendant complains that the court erred in refusing to give its instruction in the nature of a demurrer to the evidence. The facts taken in their most favorable light to plaintiff show that plaintiff was a member of a party of four, composed of her husband, her father-in-law, her mother-in-law and herself. The party was touring through Kansas City on their way to California and the expense of the trip was shared by the two men. The car belonged to plaintiff's husband. Plaintiff was seated in the rear seat of the Ford car with her mother-in-law. Her husband and his father were in the front seat. It had been raining the night before and the streets were slick. The curtains were up on the Ford car but there were windows to permit the occupants to see out. They were taking along baggage and a tent, including a tent pole about ten feet long, all of which were being carried on the left running board and left fenders of the car. The tent pole was attached to the outside of the left fender, the front end of the pole being even with the front end of the left fender but the rear end being lower than the front.
Broadway runs north and south and Southwest boulevard in a southwesterly and northeasterly direction. There were double street car tracks on both streets located in the center of the street. The Ford car was being driven to the north of the car tracks on Southwest boulevard or on the north side or right hand side of the street. When it approached Broadway it was going at the rate of ten miles per hour. When the Ford car was in Broadway, forty feet from the point of collision, the taxicab was 100 feet south, coming north and approaching the intersection on the left or wrong side of the street, astride the west rail of the car tracks on Broadway, going at the rate of from 20 to 30 miles per hour. Defendant insists that this distance traversed by the taxicab before the collision, was 75 feet but the evidence is conflicting as to this. The persons in the front seat of the Ford car discovered the presence of the taxicab at that time and the Ford driver put on his brakes and as quick as he saw that there was no chance of avoiding the collision by the means at hand he swerved the car around toward the north and the collision occurred near the northwest curb of the two streets. At that time the Ford car was traveling three or four miles an hour.
When the taxicab driver saw that a collision was imminent he also swerved his car toward his left, resulting in the cars coming together at an angle. As to which car struck the other, there is a dispute in the evidence, but as will be hereinafter pointed out we do not think it material as to which car ran into the other. Plaintiff's testimony tends to show that the taxicab hit the left front wheel of the Ford car, causing the car to swerve around in the opposite direction and to turn over on its left side, throwing plaintiff out of the car to her serious injury. The taxicab proceeded on to the left of the Ford for 25 or 30 feet where it stopped at approximately the west curb of Broadway, with its front likewise turned around in the opposite direction from which it was going. The taxicab did not slacken its speed at all prior to the collision. The impact broke off three feet of the front end of the tent pole and bent the left front fender of the Ford. The top and one of the left hind wheels of the Ford were smashed; the wind shield was gone but the front lights, bumpers and radiator of the Ford car were not damaged.
It is insisted in connection with the point that defendant's demurrer to the evidence should have been sustained, that the speed of the taxicab was not shown to have been the proximate cause of the injury. The evidence shows that the maximum rate of speed permitted by ordinance at this intersection was 10 miles per hour. It is conceded that if either car reached the intersection first, it had the right of way over the other. Plaintiff's evidence tends to show that the Ford car reached the intersection before the taxicab. As before stated, plaintiff's evidence shows that the taxicab ran 100 feet immediately prior to the collision at the rate of 20 to 30 miles per hour. If it ran at the lower rate it covered this space in 3-9/22 seconds. Had it been going at the maximum lawful rate of speed, or 10 miles per hour, it would have covered the same distance in 6-9/11 seconds. At the time the occupants of the Ford car discovered the presence of the taxicab, the Ford was 40 feet from the point of collision and the taxicab 100 feet. The driver of the Ford car was proceeding at the rate of 14-2/3 feet per second. In 6-9/11-seconds, the time that it would have required the taxicab to cover the 100 feet had it been going at the maximum lawful rate of speed, the Ford car would have gone 100 feet. It is apparent that the excessive rate of speed at which the taxicab was going was a proximate cause of the injury, for the Ford car, no doubt, would have passed in front of the taxicab had the taxicab been proceeding at the maximum rate of speed allowed by the ordinance.
It is insisted that the evidence of plaintiff's witness that the front wheel of the Ford was struck by the front of the taxicab was contrary to physical facts; that it was undisputed that there was no injury to the front part of the taxicab, the only injury being on its side, just in front of the front door, where a hole had been punched through the panel, presumably by the tent pole, and where the battery box had been smashed. In this connection it is pointed out that plaintiff testified that the taxicab was in front of the Ford when she first saw it. From the record we do not believe that it can be said that the evidence is undisputed as to the damage done to the taxicab. Two of plaintiff's witnesses who saw the collision testified that they noticed no damage to it. Some of plaintiff's witnesses testified that it was damaged on the side.
However, the evidence is not such that, even conceding that the taxicab was damaged on the side, in the place claimed by defendant, we would be justified in saying that the contention that the taxicab struck the Ford at the latter's left front wheel is against the physical facts as established by the injury to the taxicab. The two vehicles came together in a very peculiar manner. The testimony being that they struck "sideways." It would seem evident that if the taxicab had a hole in it, it was caused by the tent pole. There is no evidence as to how far the tent pole extended outward from the front wheel of the Ford car, nor the distance that the hole in the taxicab was from the portion that struck the front wheel of the Ford. As to plaintiff's testimony in regard to the taxicab being in front of the Ford, she stated, "It seems like it was in front but I cannot say exactly." "I can't say exactly." She testified that she saw the taxicab when the Ford car swerved; that the collision happened almost instantly at the time of the swerving of the Ford car. However, under the facts in this case it is immaterial as to whether the Ford car ran into the taxicab or the taxicab into the Ford, or that the two ran into each other. [Dauber v. Josephson, 237 S.W. 149.] The excessive speed of the taxicab was a proximate cause of the collision.
It is insisted that the doctrine of joint journey applies in this case and that the negligence of the driver of the Ford car should be imputed to plaintiff. Plaintiff had no ground to suspect any incompetency or to anticipate any negligence on the part of her husband, the driver of the Ford who the evidence shows was an experienced one. Whether or not there was any negligence on the part of the driver of the Ford, it is apparent that the doctrine has no application in this case. [Ziegler v. United Rys. Co., 220 S.W. 1016; Burton v. Pryor, 198 S.W. 1117; Davis v. City Light & Traction Co., 204 Mo.App. 174, 222 S.W. 884; Corn v. K. C., C. C. & St. Jo. Ry. Co., 228 S.W 78.] In the last case at l. c. 82, the case of Tannehill v. Railroad, 279 Mo. 158, cited by the defendant, was discussed and distinguished from the facts in the Corn case which are similar to the ones in...
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