Jordan v. St. Joseph Ry., Light, Heat & Power Co.
| Decision Date | 21 May 1931 |
| Docket Number | 29217 |
| Citation | 38 S.W.2d 1042 |
| Parties | JORDAN v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO |
| Court | Missouri Supreme Court |
Mayer Conkling & Sprague, of St. Joseph, for appellant.
Miles Elliott and Duvall & Boyd, all of St. Joseph, for respondent.
This case comes to the writer on reassignment. On August 3, 1924 Jasper M. Jordan, while driving an automobile of which he was the owner, collided with a street car at the intersection of Ohio street and Lake avenue in the city of St. Joseph, Mo and thereby sustained serious personal injuries. Thereafter he instituted this action against the St. Joseph Railway, Light, Heat & Power Company, the owner and operator of the car, to recover for the injuries so sustained. A trial was had in the circuit court of Buchanan county, at its January term, 1928, resulting in a verdict and judgment for defendant. The court subsequently set the jury's verdict aside and awarded plaintiff a new trial. From the order granting a new trial the defendant appealed. After the appeal was lodged in this court, the plaintiff died from causes not connected with the accident. His death was suggested and the cause revived in the name of his administratrix. In the statement which is to follow, appellant will be referred to as defendant and respondent's intestate as plaintiff.
The petition sets forth many grounds of negligence, but at plaintiff's instance the cause was submitted to the jury upon but two of them: (1) The alleged violation of a city ordinance limiting the speed of street cars to ten miles per hour; and (2) the alleged failure of the motorman to stop the street car after plaintiff was in a discoverable position of peril.
The answer is a general denial, coupled with a plea of contributory negligence.
Lake avenue ran northeasterly and southwesterly and Ohio street east and west; Ohio street came into Lake avenue from the east, where it terminated. Both were paved public streets and considerably traveled. In the center of Lake avenue there were two street car tracks; the easterly track being used for cars going northeast, the westerly one for those bound southwest. The street car with which the automobile collided at the intersection was coming from the southwest; the automobile from the east on Ohio street, headed west, the driver intending to cross the street car tracks on Lake avenue and then turn south on that street.
Lake avenue, from curb to curb, was forty-eight feet in width; from property line to property line eighty feet. Just east of where Ohio street entered Lake avenue, its width between curbs was thirty feet and its width from property line to property line sixty feet. However, Ohio street widened at its entry into Lake avenue until, at the east curb line of Lake avenue, its width was approximately seventy-five feet. Measured from the east property line of Lake avenue along the center line of Ohio street, the distance from that point to the east rail of the east railway track was thirty-nine feet. In the east parkway of Lake avenue immediately south of Ohio street stood eight cottonwood trees varying in diameter from fourteen to eighteen inches and located twenty to twenty-five feet apart.
August 3, 1924, was a bright clear day. Plaintiff was driving a two-door Ford sedan. In the last two blocks before reaching Lake avenue he traveled at the rate of twelve or fifteen miles an hour. As he approached the intersection at Lake avenue (within a quarter of a block of it), he reduced his speed to five or six miles an hour. He at no time stopped, nor did he further reduce his speed, but kept moving toward the street car tracks, and so continued until the instant he ran into, or was struck by, a street car. The street car as it entered the intersection was running at the rate of from twenty-five to thirty miles an hour, according to plaintiff's evidence, and did not thereafter materially slacken its speed prior to its collision with the automobile.
As plaintiff was approaching the intersection, he looked south and saw a street car coming at a distance of about two hundred feet; he then looked north and...
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