Kenney v. J. A. Folger & Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Bland
• Citation: Kenney v. J. A. Folger & Co., 192 S.W.2d 73 (Mo. App. 1946)
• Decision Date: 14 January 1946
• Docket Number: No. 20616.,20616.
• Parties: KENNEY v. J. A. FOLGER & CO.

192 S.W.2d 73

KENNEY v. J. A. FOLGER & CO.

No. 20616.

Kansas City Court of Appeals. Missouri.

January 14, 1946.

Appeal from Circuit Court, Jackson County; John R. James, Judge.

Action by Joyce Kenney against J. A. Folger & Company, to recover for injuries sustained in a collision between automobile, which plaintiff was driving, and a truck being driven by agent of defendant. Judgment for plaintiff and defendant appeals.

Reversed and remanded.

Clay C. Rogers and Mosman, Rogers, Bell & Conrad, all of Kansas City, for appellant.

Dwight Roberts and Allan Fisher, both of Kansas City, for respondent.

BLAND, Presiding Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,750, and defendant has appealed.

Plaintiff was injured as the result of a collision between an automobile, which she was driving, and a truck being driven by the agent of the defendant. The collision occurred at 20th & McGee Streets in Kansas City. McGee Street extends north and south, and 20th Street east and west. McGee Street is 50 feet 6 inches and Twentieth Street is 31 feet 6 inches in width. A short distance south of 20th Street McGee Street enters upon a viaduct extending over the tracks of the Kansas City Terminal Railway Company. The east line of the viaduct is slightly west of the east line of McGee Street extended south from the north line of 20th Street. The Railway Company maintains a private driveway east of the viaduct wide enough for two automobiles to pass each other thereon.

Plaintiff, a young married woman, 27 years of age, was employed at the Western Auto Supply Company, which is located on Grand Avenue, the street immediately to the west of McGee Street, and between 20th and 21st Streets. She had parked her car under the McGee Street viaduct and, on the property of the Terminal Company. About 4:35 p.m. of June 16, 1940, she entered her car. Two other ladies were sitting in the front seat with her. She drove north along the private driveway to 20th Street.

Plaintiff testified that she was intending to enter the intersection of 20th & McGee Streets and proceed north on McGee Street; that the traffic lights were against her, so she stopped at 20th Street at a point about 15 feet east of McGee Street; that she looked both ways and saw no traffic on 20th Street; that the traffic lights having changed, she started up; that at that time there was a truck about a quarter of a block north of 20th Street, coming down McGee Street headed south, traveling at a rate of speed of 25 or 30 miles per hour; that when she started up she was driving at the rate of about 5 miles per hour; that when she started she angled in a northwesterly direction; that the driver of the truck had his hand extended outward indicating that he intended to slow down or stop his vehicle, but the truck proceeded onward, at the same rate of speed, to about the north curb line of 20th Street; that when she realized that the truck was going to make a turn to the left she stopped her car; that she stopped it about in the center of 20th Street (her car was about 15½ feet in length, so, this would place the front end of her car about 8 feet north of the center of 20th Street); that the truck, proceeding at the same rate of speed, collided with her leftfront fender and pushed her car to the southeast.

Plaintiff's witness, Betty Jo Whiteside, testified that she was riding with plaintiff; that after entering the car they came around under the viaduct, up the private driveway and to the intersection at 20th Street; that they were going at a rate of speed of about 10 or 15 miles per hour; that they continued at that rate of speed while under the viaduct up to the private driveway and out into the intersection; that plaintiff put on her brakes just before the collision.

Plaintiff introduced Sec. 54 (ordinance No. 2031) of the Traffic Code of Kansas City, providing that "the driver of a vehicle intending to turn at an intersection shall do so as follows: * * * approach for a left turn shall be made in the lane for traffic to the right of and nearest to the center line of the roadway, and the left turn shall be made by passing to the right of such center line where it enters the intersection and upon leaving the intersection by passing to the right of the center line of the roadway then entered."

The driver of the truck, testifying for the defendant, stated that the truck was 19 feet in length; that it was loaded with 1100 pounds of merchandise; that he approached 20th Street from the north, driving along the center of McGee Street; that he was in the center of McGee Street for about 75 feet before he got into the intersection, and that when he was 20 or 30 feet from the intersection he put out his arm in a downward position indicating that he intended to make a left-hand turn into 20th Street; that he entered 20th Street going at a rate of speed of about 10 miles per hour; that the traffic light was in his favor; that his truck was of such length that it was impossible for him to turn the whole truck around the center of the intersection; that when he "cut the intersection" the east hind wheel of his truck was about 5 or 6 feet north and east of the intersection and the right rear wheel was probably astraddle the center of the intersection and the front end of his truck "went past the center of the intersection before I made the cut"; that in making the cut the rear end of his truck was caused to "come near the northeast curb"; that the rear of his truck was about at the man-hole in the street, which the evidence shows is 3 feet in width, and that it is 10 feet from the south side of the man-hole to the center of 20th Street.

He further testified that he entered the intersection before plaintiff did and that there was no traffic in 20th Street at the time; that plaintiff's car appeared from behind another car which was making a "U" turn going up the viaduct, and that as he was turning his truck to the left to make the turn, plaintiff's car appeared within 10 or 15 feet of the front of his truck; that he immediately turned his truck to the right in an effort to avoid striking plaintiff's car; that plaintiff's car did not stop until the vehicles "came together"; that at the time of the collision the truck was proceeding at a rate of speed of about 5 miles per hour.

Defendant introduced a report made by the police disclosing that they made measurements shortly after the accident. These measurements show that the collision occurred 47 feet east of the west curb line of McGee Street and 14 feet 6 inches north of the south line of 20th Street and 17 feet south of the north line of 20th Street. The driver of the truck testified that these measurements were correct.

On cross-examination, he testified that, in his deposition, he stated that he did not see plaintiff's car until the time of the accident and that this statement was true; that "it all depends on how you term that. She was 10 or 15 feet from me when I discovered the car". He also stated that he could have turned to the east around the center of the street by making a wide circle but that, even if he had, no doubt, there would have been a collision anyway.

Defendant offered in evidence, and the court excluded, Sec. 67 (Ordinance No. 2031) of the Traffic Code of Kansas City, reading as follows: "Emerging from an Alley or Private Driveway. The driver of a vehicle emerging from an alley, driveway, property, or building shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any such alley or driveway, and before proceeding into the street shall see that such street is sufficiently free from moving vehicles to permit such vehicle to enter the line of moving vehicles without danger of collision; and the operator or driver of such vehicle shall give warning of his intention to proceed into the line of moving vehicles by sounding his signal device and shall then proceed carefully, and yielding the right of way in case of doubt, to vehicles which are already in motion on the highway".

Defendant complains that the court erred in excluding this ordinance. We think that this contention must be sustained. The ordinance, insofar as it relates to vehicular traffic, is no doubt for the purpose of determining the question of the right of way between vehicles on the street and those attempting to emerge from an alley, driveway, property or building. Wilhelm et al. v. Hersh, Mo.App., 50 S.W.2d 735. It is admitted that plaintiff emerged from a private driveway and that she did not give any warning of her intention to proceed into 20th Street.

Plaintiff contends that defendant's truck was not on 20th Street at the time she entered therein, and that this fact is undisputed. The ordinance was admissible if there was any evidence tending to show a state of facts making it applicable. Plaintiff testified that the truck had not entered 20th Street when she started up and entered it and the driver testified, in his deposition, that he did not see plaintiff until at the time of the collision, and testified at the trial that what he stated in his deposition was true. However, he attempted to explain what he meant by "time of the accident" by saying: "It all depends upon how you term that. She was 10 or 15 feet from me when I discovered the car". Evidently, he was of the opinion that the time it took plaintiff's automobile to travel the last 10 or 15 feet was so short that the statement that he did not see it until the time of the accident was broad enough to include the last 10 or 15 feet that plaintiff's car traversed. However, his explanation was a question for the attention of the jury, and it was within the province of the jury to find, and to conclude, from his testimony, that he did see plaintiff's automobile when it was 10 or 15 feet in front of him. Connole v. East St. Louis & S. Ry. Co., 340 Mo. 690, ...