Munden v. Kansas City

• Decision Date: 02 March 1931
• Parties: H. G. MUNDEN, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT
• Court: Kansas Court of Appeals

38 S.W.2d 540

225 Mo.App. 791

H. G. MUNDEN, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT

Court of Appeals of Missouri, Kansas City

March 2, 1931

Appeal from the Circuit Court of Jackson County.--Hon. James H Austin, Judge.

AFFIRMED.

Judgment affirmed.

Winger Reeder, Barker, Gumbiner & Hazard for respondent.

David R. Derge of council.

George Kingsley and Marcy K. Brown, Jr., for appellant.

CAMPBELL C. Boyer, C., concurs. Trimble, P. J., absent.

OPINION

CAMPBELL, C.

The following parts of the opinion written by Judge BLAND, upon the original submission of the cause, are adopted by the court:

"This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3784. Defendant has appealed.

The facts show that on December 30, 1923, plaintiff was driving his automobile eastwardly over the Twenty-third Street Viaduct in Kansas City; that when he came to the end of the viaduct and was about to turn southward upon Brook street he ran into a hole causing him to lose control of his car. Thereafter the car ran over the west curb of the street thence through a board fence, which ran along the top of an embankment, and thence over the embankment and downward for a distance of thirty-three feet, resulting in his injuries.

The Twenty-third street viaduct is a steel and concrete structure connecting Kansas City, Kansas, with Kansas City, Missouri. The east end of the viaduct in Kansas City, Missouri, is known as Brook street. This street turns in a southerly direction, running down hill from its starting point at the east terminus of the viaduct. Brook street is forty-two feet in width and has double street car tracks in its center. These tracks run along the north side of the Twenty-third street viaduct and at the east end thereof turn toward the south into Brook street. It is eight feet from the west rail of the west street car track on Brook street to the west curb of the street. The street is paved with cobble stones both between the street car tracks and in the roadway on both sides of the tracks. The viaduct has a concrete fence or balustrade running along the south side thereof about three and one-half or four feet in height. At the connection of the viaduct with Brook street this railing turns for a few feet south where it joins a large concrete pier. Along the west side of Brook street south of and beginning with this pier is a wooden fence constructed of upright posts of railroad ties across which are nailed a series of three one by six planks. The fence is about four and one-half feet high, is owned by the Kansas City Terminal Railway and stands immediately west of the west curb line of Brook street. The curb is seven or eight inches high. Immediately west of the fence is a perpendicular embankment and retaining wall at the bottom of which is railroad tracks thirty-three feet below the surface of Brook street. About ten to thirteen feet six inches south of the concrete pier along the side of Brook street there is an iron trolley pole.

About two weeks prior to the time of plaintiff's injury a truck had run into the wooden fence between the pier and the trolley pole breaking away the fence for a distance of from ten to thirteen feet six inches. The break in the fence started at the pier. Thereafter a one by six board was placed across this gap made by the truck, the south end of the board being attached to the trolley pole above the ground and the other end placed against the curb without being attached. Immediately at the east end of the viaduct where it joins Brook street was a depression or a hole in the cobble stone pavement. This hole was at the point where the cobble stone joined the concrete pavement of the viaduct. The hole was from two to three feet along east and west and a foot and a half wide from north to south. It began at a point a foot and a half distant from the west car track and its west end was three and one-half feet from the west curb. It was twenty-four feet from the hole to the gap in the fence. The hole was straight down and eight or nine inches deep at the point where the concrete of the viaduct ended.

On the day in question plaintiff quit his work as a brakeman in Armourdale in Kansas City, Kansas, about 2:30 p. m. and drove his automobile over the viaduct. There was a slight mist of rain which had been falling a short time. The temperature was thirty or thirty-five degrees above zero. It was not freezing at the time but it grew colder later. Plaintiff's car was equipped with a hand-operated windshield wiper which he was using. As plaintiff approached the east end of the viaduct an east-bound street car was standing at the east end of the viaduct taking on passengers. Plaintiff, when he started to turn south on to Brook street, saw that the street car had started up and was about fifty feet away from him. Plaintiff was driving at a rate of speed of eight to ten miles per hour. His brakes were in good condition but he did not have any chains on the wheels of his car. He could have stopped his car within ten or twelve feet under the circumstances.

Plaintiff had driven over this viaduct and Brook street for a good many years in going to and from his work. He knew that the hole in the street had existed for two or three months. It had been repaired several times by filling it with gravel and oil but this filling would gradually wear out. In going over this hole plaintiff had always "straddler it" or had gone around it on the street car tracks. He had always succeeded in avoiding striking the hole. On the day in question he tried to straddle the hole but did not succeed in doing so. On reaching the east end of the viaduct plaintiff turned the wheels of his car south in order to go southward into Brook street. His left front wheel then went into the hole causing the steering wheel to break leaving the rim of the wheel in his hand and resulting in his losing control of his car. The car was equipped with what is called an irreversible steering gear, and the wheels having been turned to the right, the car continued to go in that direction. It ran over the curb, through the board which had been placed over the gap in the fence and fell to the railroad tracks below.

The evidence shows that there was not room enough for plaintiff to go between the curb and the hole and the reason he gave for not going around the hole to the east or over the street car tracks was that the cobble stones were rougher between the tracks and that the rails were slippery, consequently, he preferred to "take the chance on the hole than I would the rails."

It is insisted by defendant that the court erred in refusing to give its peremptory instruction for the reason that plaintiff was guilty of contributory negligence as a matter of law. In this connection defendant urges that the roadway and the street were slick and icy and plaintiff's car was no equipped with chains. While there was some testimony tending to show that the temperature was below freezing, the evidence, taken in its most favorable light to the plaintiff, shows to the contrary. We fail to see what difference it makes whether it was freezing or not. Plaintiff stated to the effect that to the best of his knowledge he did not skid. We would not be authorized to say as a matter of law that plaintiff was guilty of contributory negligence in not having chains even had the weather been freezing and he had skidded.

However, it is insisted that plaintiff know all about the condition of the street; that he should have gone around the hole and on the street car tracks or driven sufficiently slow to straddle it; that he had always escaped it before and should have done so this time; that it was broad daylight and there was nothing to obscure his vision.

We cannot convict plaintiff of contributory negligence as a matter of law even though he did know of the circumstances present, including the gap in the fence. He had been able to straddle the hole before and while there was no doubt some danger in attempting to do so on this occasion he stated that the reason he did not go around the hole and over the street car tracks was because the pavement was rougher between the tracks and it had been raining and the tracks were slick. It will be remembered also that the street car had started up and had almost reached the point where plaintiff would have been required to go upon the tracks in order to go around the hole.

Defendant infers that plaintiff's automobile was in a bad condition of repair because the steering gear broke. In view of the fact that the falling of his car into a hole for a distance of nine inches well could have caused something to give away about the car the jury were not required to draw any such inference, much less, the inference that if the steering gear was out of repair plaintiff knew or should have known of it.

Defendant points out that plaintiff testified that he could have stopped his car within ten or twelve feet at the rate of speed he was going and that he had his foot on the brake at the time he went into the hole. It was twenty-four feet from the hole to the gap in the fence. It is argued that if plaintiff had been careful he would have stopped his car before it reached the precipice, especially in view of the fact that the car was first required to go over the curb which was seven or eight inches in height. However, we cannot convict plaintiff of contributory negligence as a matter of law because he did not act as one normally would have done had no accident befallen, that is to say, had not the steering gear broken. We cannot say as a matter of law that a speed of eight miles per hour was too great for plaintiff to have been proceeding at the time he ran into the hole, even...