Love v. Kansas City

• Decision Date: 23 May 1938
• Docket Number: No. 19150.,19150.
• Citation: 118 S.W.2d 69
• Parties: LOVE v. KANSAS CITY.
• Court: Missouri Court of Appeals

118 S.W.2d 69

LOVE v. KANSAS CITY.

No. 19150.

Kansas City Court of Appeals. Missouri.

May 23, 1938.

Rehearing Denied June 13, 1938.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be published in State Reports."

Action by Elmer Love against Kansas City, Missouri, for injuries sustained when plaintiff's automobile collided with girder of viaduct. From a judgment for plaintiff after refusing defendant's instruction in the nature of a demurrer to the evidence, defendant appeals.

Affirmed.

Geo. Kingsley and Jas. R. Sullivan, both of Kansas City, for appellant.

Browne & Ennis, of Kansas City, for respondent.

BLAND, Judge.

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

The facts show that plaintiff was injured about 2:30 a. m., on the 26th day of March 1933. He was driving his automobile toward the east on 18th Street in Kansas City, when he struck the center girder of a viaduct carrying said street over railroad tracks near the point where that street crosses Kansas Avenue. The viaduct in question was of steel construction with a large superstructure which occupied the entire width of the vehicular portion of the street, which portion was 38 feet in width. There were three lines of superstructure, running east and west, with a large girder in front and to the west of each line. One of these lines was on the south side, one on the north and one in the middle of the street. The girder in front of the middle line was 2 feet 2½ inches in width and leaned toward the east. There was a street car track between the south and center girder and another between the north and center girder. The street was paved between the girders.

Plaintiff was driving an old Model "T" Ford automobile. At the time of the collision plaintiff was taking a friend home who lived east of the viaduct. He had been driving at the rate of speed of about 15 miles per hour when he approached another automobile parked "snuggly" against the south curb of 18th Street. At that time plaintiff's car was 10 or 15 feet from the south curb. He saw the lighted "tail" light of this car when he was 15 or 20 feet from it and, to avoid striking it, he turned to the left and almost immediately struck the girder.

He testified that he did not see the girder on account of the fact that it was enveloped in a smoky fog, to use plaintiff's language: "There was a smoky fog there on the viaduct or just at the end of the viaduct". As to the density of the smoke he testified that when he got into it "it just killed the vision altogether, I couldn't see"; that his car struck the girder and "slid up" three or four feet.

The evidence shows that there was no light, reflectors or anything on the girder in question to indicate its presence at night. Plaintiff testified that there were some markings on the girder but that they had been "grayed out." He denied that there was a light on either side of the superstructure throwing "rays about 150 to 200 feet". Defendant's testimony tends to show to the contrary. He testified that after the collision he sat on the curbing on the south side of the viaduct; that a police officer handed him a paper on which he wrote and that he was able to see with the aid of the headlights on his car. This testimony of plaintiff indicates that there was no light in the vicinity save that made by the headlights.

He further testified that the parked car was 20 or 30 feet from the girder; that his headlights enabled him to see, with nothing in front of them, 25 or 30 feet; that his brakes were in good condition and he could have stopped his car within 15 or 20 feet going 15 miles per hour, (the speed at which he was proceeding at the time in question) and could have stopped before reaching the parked automobile; that he did not slow his car down prior to striking the girder, because it was unnecessary to stop, as he had ample opportunity to go around the parked automobile without striking it and that he had no reason to slacken the speed of his automobile after passing the car. He denied that he "almost hit" the parked automobile. He denied that he swung to the north 30 feet in passing the parked automobile. He also denied that he was drinking.

He further testified that he had seen the viaduct before; that he had gone over it "on the street car" previous to the time of the collision; that he had never passed over it in an automobile. He also testified that at the time of the collision he did not know, and could not tell, that the girder was there until after it happened. Objection to this testimony was sustained after the question was answered. Apparently the witness answered the question before counsel for defendant had time to finish the objection that he was making at the time but no motion was made to strike out the testimony.

Defendant insists that the court erred in refusing to give its instruction in the nature of a demurrer to the evidence, for the reason that plaintiff was guilty of contributory negligence as a matter of law. In this connection defendant says that plaintiff knew of the presence of the viaduct because he had been over it on "previous trips" on the street car; that at the time of the collision he was driving so closely to the parked automobile that he was required to swing sharply toward the north in order to avoid striking it; that instead of turning his car, after passing it, he continued on down the street in a diagonal direction, crossing the street car tracks, and on the "wrong side" of the street, striking the girder; that plaintiff's testimony shows that he started around the parked car when he was between 45 to 60 feet from the girder, and during the time that he traversed this distance he made no effort to slacken the speed of his car; that the fact that the headlights of plaintiff's automobile cast a reflection more than 25 feet in front of him and that he did not see the parked automobile until he was 15 or 20 feet from it, shows that he was not keeping a proper lookout. In this connection defendant says that the automobile was parked directly under a 400 candle power light.

There is ample testimony from which the jury could conclude that there was no light over the parked car. There is no evidence that plaintiff drove over on to the "wrong side" (or north of the center) of the street, as the girder was located in the middle thereof. There is nothing in the testimony to indicate that plaintiff went over to the north side of the street then came back and hit the girder. The statement that he drove diagonally across the street is not accurate, because he testified that when he approached the parked automobile he was driving 10 or 15 feet from the south curb and the evidence shows that the girder was only 19 feet from the curb.

There is ample testimony from which the jury could conclude that the smoke was so dense that plaintiff's headlights could not penetrate it, and there is no conclusive evidence that he knew of the presence of the girder before he struck it. The jury could have given what consideration it saw fit to plaintiff's testimony that he did not see the parked car until he was 15 feet from it, whereas, his headlights cast a reflection for a distance of at least 25 feet in front of him. Of course, these distances were mere estimates. The difference in the number of feet is so small in this case as to be of little consequence in the appellate court in passing upon the proposition as to whether plaintiff was guilty of contributory negligence, as a matter of law, especially, in view of the fact that the crucial question involved is not whether plaintiff should have seen the parked car sooner, but whether he saw or should have seen...