Lewis v. Kansas City Public Service Co.

• Decision Date: 29 April 1929
• Docket Number: No. 16521.,16521.
• Citation: 17 S.W.2d 359
• Parties: LEWIS v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

17 S.W.2d 359

LEWIS v. KANSAS CITY PUBLIC SERVICE CO.

No. 16521.

Kansas City Court of Appeals. Missouri.

April 29, 1929.

Rehearing Denied May 20, 1929.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be officially published."

Action by James W. Lewis against the Kansas City Public Service Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Harry G. Kyle, Walter A. Raymond, and Carl Borrello, all of Kansas City, for appellant.

Charles L. Carr, E. E. Ball, and Harding, Murphy & Tucker, all of Kansas City, for respondent.

LEE, C.

This is an appeal by plaintiff from the adverse verdict in an action brought by him for personal injuries received in a collision between a motorcar in which plaintiff was a passenger and a bus being operated by the defendant company. The accident occurred about 10:15 p. m. on October 13, 1925, at the north side of the intersection of Independence avenue and Benton boulevard, in Kansas City, Mo. Independence avenue runs east and west and is traversed by a double track street car line. Benton boulevard approaches from the north, and as it enters Independence avenue is broadened out with curved corners. It jogs to the eastward at Independence avenue, bringing the west line of south Benton boulevard somewhat east of the east line of north Benton boulevard, and causing the center of north and south traffic to swing in a left-hand curve into Independence avenue and then out again to the south in a similar right-hand curve. There is a painted traffic line along this curve, beginning 150 feet or more northward in the center of Benton boulevard, and following the curve to a point on the north property line, prolonged, of Independence avenue, which is about 25 feet east of the due north and south center of north Benton, prolonged. Red and green traffic lights are operated at this intersection, by which east-bound traffic on Independence avenue is stopped west of the west property line extended of north Benton boulevard, and east-bound traffic on Independence avenue is stopped east of the east property line extended of south Benton boulevard; the stopping points between the east and west traffic thus being approximately 235 feet apart.

On the evening in question plaintiff and one Logsdon had been working at the election polls somewhere northeast of this point, and testified that they had started down town in Logsdon's Buick automobile to watch the election returns; Logsdon being at the wheel, and plaintiff being beside him on the right side of the front seat. Coming west on Independence avenue, they were stopped by the red signal light. When the green light came on, they moved forward on Independence avenue, and as they crossed Benton boulevard they collided with a bus owned and operated by defendant, which had come east on the south side of Independence avenue, and was turning northward into north Benton boulevard. The front left fender, the lamp, and the left frame of the Buick were struck by the bus. Plaintiff's evidence is that he was precipitated against the windshield, and then fell over to the right and out of the car, from which he claims to have received permanent injuries.

Plaintiff himself testifies that their car was the first car in line where they were parked at the intersection; that they were traveling uphill on a dry street, in second gear; that they were at all times on the north side of the street car tracks; that there were no other cars to the north, and that they had gotten almost across Benton boulevard when the collision occurred. Beyond that he states that he remembers nothing about what happened, and that his first recollection of the accident was when he was in the General Hospital.

He states that while waiting for the green light his attention was mostly directed to the people coming out of the movie theater on his right, on the north side of Independence avenue, facing south Benton boulevard; that he did not see the bus making the turn in the intersection and did not see it hit them; that "I never seen nothing, no, sir; I don't remember anything."

Witness Logsdon testified that they were traveling uphill at about 10 or 15 miles per hour and were two-thirds of the way across when he discovered a bus about 10 feet distant also traveling at about "the same speed I was or faster, if any difference"; that he heard no horn; that he would judge by a rough estimate that they had crossed what would have been the center line of north Benton boulevard extended southward; that he was clear past the yellow traffic line; that he could not be certain about his distances, which were all just approximate; that he did not know whether or not the bus driver slackened his speed any; that the frame and left side of his car and the end of the fender came in contact with the rim of the right front disc wheel of the bus. When asked to describe the collision, he stated: "Well, there is not much to describe. The first thing I noticed it was just all over and that just about all describes it. * * * Well, it kind of turned us a little bit northwest and southeast. * * * Well, I don't think it (the bus) moved very far. I think it stopped practically right now." On cross-examination he stated that the bus had traveled about 15 or 20 feet east of the east end of the safety zone when it made its turn across the car track; that when their car was 10 feet from the bus, both going 12 miles an hour, the driver of the bus had as little opportunity as himself to stop; that witness did not swerve or turn his own car either to the right or left, and did not apply the brakes, which so far as he knew were all right. He further testified on cross-examination that he could not remember of there being any traffic ahead of the bus; that he did not see the bus; but that, so far as the light was concerned, he could probably have seen it clear across the intersection. When asked whether, if the bus had started at the same time to make the left-hand turn and if witness had been watching, he could have seen it make the turn, he answered: "If I had been watching, and hadn't have had the lights I could have, but I was looking direct ahead, being the lights was in my favor.

"Q. You mean the headlights of the bus? A. No, the traffic lights."

When again asked if he could have seen the lights in the bus and the bus itself before it moved, he answered: "Well perhaps I could have if I had known it would have been a bus.

"Q. And if you had continued to keep your eye upon it, you could have seen the movements wherever it went there in the intersection, couldn't you? A. Perhaps so.

"Q. Why certainly. A. But I did not know whether that bus was going to turn or not. * * * I say I didn't know whether that was the bus or whether that car was going straight east or not."

He testified further that, when he first saw the bus, it was headed a little northeast, making the turn across the track; that as near as he could get it the front end of it was just about leaving the north street car tracks. On the plat introduced in evidence he identified the point of collision about 30 feet southwesterly from the curved traffic line coming down the center of Benton boulevard, and nearly on but slightly east of what would have been that center line if extended due south from north Benton into Independence avenue. He denied knowledge of the distance within which he could stop a car going at 12 miles per hour under the conditions in question; but when asked whether, if he saw a child 10 feet away in front of his car going 12 miles per hour, he could turn to the right or left and avoid hitting, he replied, "I expect so."

Witness Lonegan testified that he had been standing in front of the movie theater on the northeast side of the intersection, and made 4 or 5 steps off the curb, going westward on the north side of Independence avenue; that the collision occurred 5 or 6 feet north of the railway tracks and 10 or 12 feet west of the west curb line of Benton boulevard; that the Buick car was pushed 10 or 12 feet after the collision; that the bus was not shoved any, but "kept forging on"; that the...