Newton v. Harvey

• Decision Date: 28 January 1918
• Docket Number: No. 12298.,12298.
• Citation: 202 S.W. 249
• Parties: NEWTON v. HARVEY et al.
• Court: Missouri Court of Appeals

202 S.W. 249

NEWTON v. HARVEY et al.

No. 12298.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

"Not to be officially published."

Action by Charles E. Newton, by his next friend, Elizabeth Newton, against Ford F. Harvey and Robert J. Dunham, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Clyde Taylor, Ben T. Hardin, and Charles A. Stratton, all of Kansas City, for appellants. Atwood & Hill and A. C. Popham, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, a boy 15 years old, while riding as a guest in an automobile truck, sustained personal injuries by reason of a street car colliding therewith at the intersection of Minnesota avenue and Thirteenth street in Kansas City, Kan. This suit for damages on account thereof resulted in a verdict for plaintiff in the sum of $5,400, and the defendant receivers appealed.

Several specifications of negligence were set out in the petition, but the case was submitted upon only one of them, namely, that the operatives of the car saw, or by the exercise of ordinary care could have seen, the plaintiff in a zone of danger and in a position of peril, and wholly oblivious thereof, in time by the exercise of ordinary care on their part to have stopped said street car, or slackened the speed thereof, in time to have avoided the collision and injury, all of which, it was alleged, they carelessly and negligently failed to do.

The first question to be determined is whether a demurrer to the evidence should have been sustained. Several grounds are urged as reasons why it should have been, the most important of which is the contention that there was no evidence tending to show, or from which the jury could rightfully infer, negligence on the part of the motorman. And the very crux of this matter is whether, after the motorman saw, or should have o seen and understood, that a collision was about to occur, there was time enough for him, in the exercise of ordinary care under the circumstances, to have avoided the collision by stopping his car. This goes to the very vitals of the cause, since, if there is no room for the jury to find that the motorman had such time, the plaintiff has no case.

Minnesota avenue, 70 feet wide from curb to curb, runs east and west, and Thirteenth street, 40 feet in width from curb to curb, rims north and south. A double-track electric railway line lies in the middle of Minnesota avenue; the west-bound being the north track. From the north rail of this westbound track it is 28 feet to the curb. The truck was a Ford roadster, converted into a truck by taking the back off and putting on a bed. This left the top or hood over the driver's seat, with side curtains thereon, which were in place, so as to inclose the driver and his companion, the plaintiff. The truck came from the north on Thirteenth, approaching the intersection at Minnesota avenue. Plaintiff was on the west or right side of the driver. There was a 5 per cent. upgrade on Thirteenth as it went south to the intersection, and on Minnesota avenue, from near Twelfth street west to the intersection at Thirteenth, was a downgrade of 4 per cent. The truck, in going south on Thirteenth toward the intersection, was a little west of the center line of the street. When the truck reached the north curb line of Minnesota avenue, the driver deflected from a due south course slightly to the east, so as to pass over the intersection in a somewhat southeasterly course; the intention being to cross over the railway tracks to the south side of Minnesota avenue and then turn east for a block. When the truck reached the said north curb line of Minnesota avenue, plaintiff leaned forward and looked toward the east out of the aperture near the windshield and saw defendant's car coming about 175 or 200 feet east of the intersection. He exclaimed, "There is a car!" Immediately the driver put on his brakes, and this killed the engine; but, as there was snow on tie ground, the wheels slid, the rear end skidded around to the right, so that when the automobile stopped it was headed much more to the southeast, and the right front corner of the automobile was very close to or over the north rail of the west-bound track. At the moment the automobile came to a dead stop over the rail, plaintiff again saw the street car 50 feet away, and made an effort to get out of the automobile, but before he could do so the car struck the automobile and injured him. The point of collision was immediately west of the east line of Thirteenth street. The evidence tends to show that, although there was snow on the ground, it was a dry snow and the railway tracks were dry.

The evidence tends to show that when the automobile was at the north curb line of Minnesota avenue, where the brakes were applied in the attempt to stop, and the truck began to skid around and continue sliding toward the track, the street car was 175 or 200 feet away, and when the truck finally wound up, by stopping partly over the rail, the car was 50 feet away. Now, the motorman says he did not run into the truck, but that the truck ran into the side of the car; the defendant's contention being that the truck came very rapidly up Thirteenth street on the wrong or east side of the street, and attempted to turn east on Minnesota avenue by "cutting the corner," seeking to go north of the tracks, but in making the turn swerved too near them and struck the street car. The motorman does not claim that the truck flashed suddenly into view immediately before the collision, or that he thought the truck was going to stop before it got within the danger zone, He admitted that he saw the automobile when he was 100 feet from the intersection and rang his danger signal, and said he saw it "cut the corner" when he was 40 or 50 feet away, but did not apply his emergency brakes until he was 20 or 30 feet from the truck and saw he was going to hit it, and then he did all that he could to stop. A submotorman, who was standing at the motorman's side, and who was a witness for defendants, said the car at 100 feet from the intersection was going 10 or 11 miles per hour, and that the motorman made no further effort to reduce speed until he saw he was going to hit the truck. He first said the street car at this time was 40 to 60 feet from the intersection, but afterwards said that the motorman applied the emergency brakes when he saw he was going to hit the truck, and that the emergency was applied when the car was only 10 feet from the truck. There was evidence tending to show that when the car was 200 feet away it was running at from 15 to 20 miles per hour, at 100 feet away it was going 10 or 11 miles per hour, at 75 to 50 feet away it was traveling at from 10 to 15 miles per hour, and at 20 feet away it was going 5 miles per hour. The motorman testified he could stop the car in 75 feet when going 15 miles per hour. Plaintiff introduced the expert testimony of a former motorman, who had driven street cars over this place. His testimony tended to show that a car under the circumstances and at the place in question, going 10 miles per hour, could have been stopped in from 15 to 25 feet, and, going at 15 miles per hour, could have been stopped in 30 feet. The car ran about half its length, or 15 feet, past the truck after the collision. A witness for the defendants, who was standing in the front door of the car, stated on cross-examination that when the street car was 150 to 200 feet from the crossing at Thirteenth street it was going from 15 to 20 miles per hour, and at that time he saw the automobile coming toward the track, noticed that the occupants of the automobile were inclosed and apparently paying no attention, and he realized there was going to be an accident. He further stated that the motorman saw what he saw.

From the foregoing it will readily be seen that the motorman was approaching a street intersection in a city, knowing that an automobile, with its...