O'Neill v. Kansas City Rys. Co.

• Decision Date: 09 January 1922
• Docket Number: No. 14050.,14050.
• Citation: 239 S.W. 877
• Parties: O'NEILL v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

239 S.W. 877

O'NEILL v. KANSAS CITY RYS. CO.

No. 14050.

Kansas City Court of Appeals. Missouri.

January 9, 1922.

Rehearing Denied April 7, 1922.

Appeal from Circuit Court, Jackson County; C. A. Burney, Judge.

"Not to be officially published."

Action by Hugh S. O'Neill against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. N. Sadler and Louis R. Weiss, both of Kansas City, for appellant.

Clif Langsdale, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, with four companions, a man in the front seat with him and two ladies and a man on the rear seat, was driving an automobile south on Holmes street in Kansas City, Mo., when, upon reaching Tenth street, which runs east and west, a west-bound street car collided with and demolished his automobile and injured him personally. He brought this suit seeking $5,000 personal damages and $1,000 for damage to his automobile. He recovered a verdict and judgment for $776, and defendant has appealed.

Among the acts of negligence specified was that of running the street car at a high and dangerous rate of speed.

At the close of plaintiff's case the defendant offered a demurrer to the evidence which was overruled, and thereupon defendant introduced no evidence, but stood on its demurrer. And the question of whether this should have been sustained is the math issue to be disposed of.

The collision occurred on the 27th of May, 1917, about 6:35 in the evening. It had been raining, and the pavement was wet and slippery. Plaintiff was driving his automobile down the right-hand or west side of Holmes street, and when he reached Tenth street he was going about 7 or 8 miles an hour. There was a double line of street railway tracks on Tenth street, the west-bound track being the one nearest the north side. At the northeast corner of Tenth and Holmes streets was a brick building which prevented one coming south on Holmes from seeing any great distance east up Tenth street. The north curb line of Tenth street was from 8 to 11 feet from the north rail of the west-bound car track. When the front end of the automobile reached the north curb line of Tenth street, plaintiff, from his seat some 5 feet further back north, could, for the first time see east up Tenth street for a distance of about 100 feet, at which point he saw a street car coming down a slight grade at a high rate of speed which the witnesses say was from 30 to 35 miles per hour. Realizing that he could not cross the tracks before the street car, coming at such high speed, would be upon him, and that, if he attempted to stop before reaching the track, his car would slip on the wet street into the danger zone, he turned his automobile to the west on Tenth street, but, the space being so narrow, before he could get his automobile headed due west his left front wheel got about 6 inches over the street car rail where the swiftly moving street car caught it, pulled the machine over onto the track ahead of the street car, and pushed it about 75 feet down the track where it was met and struck by an east-bound street car on the other track, and the automobile, being jammed between the two cars, was demolished.

It is contended that the speed of the car was not the proximate cause of the collision, and that plaintiff was negligent in approaching the tracks in such manner that he could not stop in time to avoid danger, and Grear v. Harvey, 195 Mo. App. 8, 11, 177 S.W. 780, is cited in support of its contention that the demurrer should have been sustained. But this ignores the high rate of speed, which was dangerous and unsafe, and therefore negligent, at which the street car was going. In the Grear Case the street car was going at the lawful rate of 10 miles per hour, while in the case at bar it was going at the highly dangerous rate of 35 miles an hour. We cannot agree with defendant that the high speed had nothing to do with the collision. It was what caused it. Plaintiff says he was looking east up Tenth street as far as he could as he approached the street intersection. A pedestrian on the southwest corner of the street intersection also says plaintiff was so looking. A street car approaching the crossing at a reasonable or lawful rate of speed would, in order to collide with plaintiff, have been much nearer the crossing than 100 feet, and would therefore have been in plaintiff's view before he got so close to the track as he was when he did see it, and in that event he would have been enabled to stop before reaching the danger zone. Had the car been going at a lawful rate of speed, the plaintiff, as he approached so close to the crossing, with the car so far away, would have had ample time to cross in safety, and would have had no occasion for stopping or avoiding the street car. In other words, it was only the excessive speed of the car that enabled it, when the front end of the automobile was only 11 feet from the track, to traverse the 100-foot distance and catch it as it did. In State ex rel. v. Ellison (Mo. Sup.) 182 S. W. 961, 964, where the Grear Case is considered on certiorari by the Supreme Court, the mutual rights of the plaintiff and the operator of the street car to the use of the street, and the duties existing between themselves to maintain a lookout for each other "at a point where each might ordinarily be expected to be," are fully set forth. In...