Kendrick v. Kansas City

• Decision Date: 09 February 1922
• Docket Number: No. 13628.,13628.
• Citation: 237 S.W. 1011
• Parties: KENDRICK v. KANSAS CITY.
• Court: Missouri Supreme Court

237 S.W. 1011

KENDRICK v. KANSAS CITY.

No. 13628.

Supreme Court of Missouri, in Banc.

February 9, 1922.

Appeal from Circuit Court, Jackson County; E. Porterfield, Judge.

Action by G. L. Kendrick against Kansas City. Judgment for the plaintiff was reversed by the Kansas City Court of Appeals, and the case certified on the request of the dissenting judge to the Supreme Court. Judgment of the circuit court affirmed.

E. K. Harber and Francis M. Hayward, both of Kansas City, for appellant.

New, Miller, Camack & Winger, P. E. Reeder, Frank P. Barker, and R. D. Groves, all of Kansas City, for respondent.

SMALL, C.

I. This case results from the same collision at the bridge over the Belt Line at Harrison street in Kansas City as in Boyd v. Kansas City (Mo. Sup.) 237 S. W. 1001, just decided. But in this case the plaintiff, Kendrick, was the owner and driver of the machine, and not a guest, as in that case. The rule as to contributory negligence is therefore different, and the appellant makes several contentions as to the contributory negligence of the plaintiff in this case, which were not applicable to the plaintiff in the Boyd Case. Some more particular reference to the testimony on this subject is therefore necessary.

Plaintiff testified as to the distance his headlight would throw light forward as follows:

"I have said 25 to 30 and 35 feet, but: am not positive. That would be hard to tell. It was as much as 25 feet. I would venture to swear to that as an absolute fact. I could see an object that far ahead as I went up to the viaduct. I wouldn't swear whether the headlight shed light as much as 30 feet ahead of me that night—whether it did or didn't; but I am positive it did cast it 25 feet ahead."

As to the time in which he could stop his car he said:

"Q. Going back again to the question of stopping the car, you said that the headlight would shed a light at least 25 feet ahead? A. Yes, sir; I think it would. Q. You did say you could stop the car in 30 or 40 feet? A. Well, I should judge so; yes, sir. Q. You could do that? A. Of course, I have seen lots of times when a person could not stop in 75 feet. Q. You think under these conditions you could have stopped in probably 35 feet? A. Yes, sir. Q. If you had seen this viaduct 25 or 30 feet back further, you would have had no trouble in turning your car to the right and avoid hitting the center girder? A. Well, possibly not. If you didn't skid, you would have no trouble. Q. Well, the middle of the roadway was practically dry? A. The middle of the street was practically dry, but of course the side was practically wet. In case of brakes like that, if you, are driving along the center of the street, one wheel might be where it was dry and one where it was wet. The one where it was dry would hold, and possibly the other would lock and slide. I couldn't tell whether it was wet or dry immediately in front of the girder."

Plaintiff further testified:

"Couldn't say whether there was any fog, mist, or smoke there that night; it was cloudy; can't see far with ground lens. The light does not Penetrate."

Other witnesses for plaintiff testified that there was fog, mist, and clouds, and the atmosphere was hazy and heavy with smoke, and it was dark there where the accident happened—substantially as in the Boyd Case. In other respects the evidence for plaintiff and for defendant was also substantially the same as in the Boyd Case, except, of course, as to the injuries of the plaintiff. Plaintiff sued for injuries to his person as well as to his automobile. He recovered judgment for $3,000, of which appellant complains as excessive. We will refer to the evidence on that point, later on.

II. The appellant's learned counsel insists that plaintiff was guilty of contributory negligence which bars his recovery, under his own evidence that his headlight would not throw light forward so as to reveal objects 150 feet ahead as required by the ordinance of Kansas City (which we set out in the statement in the Boyd Case) and the State Motor Vehicles Act, which seems to be the same in substance. The state statute (Acts 1917, p. 412, sec. 10, par. 2) is as follows:

"(2) Vehicles to Carry Lights—Power—How Used—Kind.—Every motor vehicle, while on the public highways, whether in operation or otherwise, during the period from a half hour after sunset to a half hour before sunrise, and at all times when fog or other atmospheric conditions render the operation of vehicles dangerous to the traffic on and use of the highway, shall carry, at the front, at least two lighted lamps not exceeding thirty-six candle power each (except that motorcycles shall carry one lighted lamp), showing white lights, visible, under normal atmospheric conditions, at least five hundred feet in the direction toward which said motor vehicle is facing, which lamp shall produce sufficient light to reveal objects one hundred and fifty feet ahead, and shall be adjusted and directed so that, on level ground, the main shaft of clear, condensed light, shall be projected straight forward, and no portion of it shall be above the level of the lamp nor more than forty-two inches above the ground. Such adjustment and direction shall be permanently maintained. Electric headlights shall, in addition, have the entire inside surface of their door glasses etched or ground to such a degree or be so formed that the lighted filament shall appear blurred and indistinctly defined, and that the light emitted shall be diffused and free from scintillation and brilliant or metallic luster."

We think that the portion of the above statute which we have underscored shows that it is only "under normal atmospheric conditions" that the headlight is required to produce sufficient light to reveal objects 150 feet ahead. This would be the reasonable construction, even in the absence of the above-italicized phrase (which is absent from the city ordinance), because it is by no means certain that a ground glass headlight of two electric bulbs or other lights of but 36 candle power each could throw the light that far forward in case the atmosphere was heavy with fog and smoke. We have set out the plaintiff's testimony fully, and it would seem that he is referring to the conditions which confronted him on the night of his injury at the...