Malone v. Kansas City Rys. Co.

• Decision Date: 13 June 1921
• Docket Number: No. 14030.,14030.
• Parties: MALONE v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

232 S.W. 782

MALONE v. KANSAS CITY RYS. CO.

No. 14030.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Rehearing Denied June 27, 1921.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by Charles Malone against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles N. Sadler, of Kansas, City, Mo., R. J. Higgins, of Kansas City, Kan., and E. E. Ball and Mont T. Prewitt, both of Kansas City, Mo., for appellant.

T. J. Madden and Thos. Madden, both of Kansas City, Mo., for respondent.

TRIMBLE, P. J.

Plaintiff, a member of the city fire department, was at his post of duty on a motor fire truck going north on Ewing avenue in Kansas City, responding to a fire alarm, when, in crossing Washington Park boulevard, a collision occurred between the truck and an east-bound street car. Plaintiff was standing on the running board on the left-hand side, turning the crank which operated the siren warning traffic for a clear right of way, and which could be heard for 12 or 15 blocks. The impact of the collision threw him off the tanning board and under the street car, severely injuring him, for which he brought this action against the street car company. The jury awarded him a verdict of $3,500, on which judgment was rendered, and defendant appealed.

Plaintiff's cause of action was based upon the violation of an ordinance giving the city fire department the right of way on the streets when going to a fire, and providing that when such was the case no person should impede or obstruct its engine, hose cart, wagon, or other apparatus, and requiring street cars to come to a full stop and remain so until the fire engine, truck, or other apparatus had passed or had come to a stop. The petition charged that the car in question was caused or permitted to continue on its course instead of being stopped or its speed diminished and the same ran in front of and obstructed the course of said fire wagon, and collided therewith, and impeded and interfered with the progress of the same, and the injuries were due to the negligence of defendant, its agents, and servants in charge of said car, in that the same was not stopped nor the speed diminished before the point of collision was reached, where, under the ordinance aforesaid, the fire crew had the right of way, when the operatives of the car knew, or in the exercise of ordinary care should have known, that the fire truck was approaching and was about to be driven over its tracks, and that it had the right of way; and in that said operatives impeded, obstructed, and interfered with the progress of said fire truck while the same was going to a fire, and caused or permitted said car to collide with said truck when they knew, or in the exercise of ordinary care could have known, that said fire wagon was on its way to a fire, and was approaching, and was about to cross the street car tracks.

The answer was a general denial, together with a plea of contributory negligence, in that the plaintiff and the driver of the truck drove it into the side of the car; that plaintiff could have seen the car and avoided being injured in the collision; and that plaintiff negligently relied upon the care and prudence of the driver of the truck when plaintiff saw or could have seen that the latter was driving the truck into the side of the "standing street car in question."

The captain of the crew was on the front seat, left side, and the driver on the right-hand side of the same seat. The truck was about 23 feet long, weighed about 9,700 pounds, and had on it a lot of hose and other fire-fighting equipment. Another fireman was on the rear end, standing up.

Various persons in the neighborhood were aware of the coming of the truck. A grocer, whose store was the second door east of the northeast corner of the intersection, ran out into the street east of the intersection, got upon the street railway track and threw up his hands in a signal to flag the oncoming street car. The driver of the truck saw him flagging the street car, and also saw him beckoning him, the driver of the truck, to come on across. The driver also saw a policeman behind the grocer and he was signaling the street car to stop. The truck was going north and was a little to the right of the center of the street.

The street car did not stop either in response to the signals or the warning of the siren, but came on, and the signaling grocer was compelled to get off the track for his own safety. According to the captain of the crew, the street car, at a point 40 feet west of the point of collision, was going 8 or 10 miles per hour, and looked like it was going to stop. The truck driver thought the car was going 25 miles an hour and the truck between 10 and 12 miles per hour. A spectator on the sidewalk thought the car was going 15 miles per hour, another thought the truck was going 10 or 12 miles.

There is some conflict as to the point of contact between the two vehicles. The evidence in plaintiff's behalf is that the street car struck the truck. The motorman and conductor say the truck ran into the street car, striking it just back of the front vestibule. As the collision became imminent the driver of the truck swerved to the east in an endeavor to avoid the car, but could not do so, and came in contact with the front end thereof, throwing the truck around so that it faced in a southeasterly direction, with the right front wheel up over the curb. Plaintiff was thrown between the rails under the car, and immediately in front of the...