Pearson v. Kansas City Public Service Co., 21109.

• Citation: 217 S.W.2d 276
• Decision Date: 10 January 1949
• Docket Number: No. 21109.,21109.
• Parties: PEARSON v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

217 S.W.2d 276

PEARSON v. KANSAS CITY PUBLIC SERVICE CO.

No. 21109.

Kansas City Court of Appeals. Missouri.

January 10, 1949.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Not to be published in States Reports.

Action by Walter Davis Pearson against Kansas City Public Service Company for personal injuries growing out of collision with one of the defendant's street cars. From a judgment for plaintiff for $7,000, the defendant appeals.

Affirmed.

Charles L. Carr, William A. Kitchen, Henry Depping, Hale Houts and Hogsett, Trippe, Depping & Houts, all of Kansas City, for appellant.

Charles Rubins, Herbert Jacob and Walter A. Raymond, all of Kansas City, for respondent.

DEW, Judge.

Respondent, plaintiff in the trial court, brought suit to recover for personal injuries growing out of a collision with one of the defendant's street cars, and upon trial obtained verdict and judgment in the sum of $7,000. From this judgment defendant appealed.

Omitting the allegations of facts pleaded which are not in controversy, the petition alleges that on or about March 5, 1945, while plaintiff was walking in a westerly direction across Main Street in Kansas City, Missouri, which runs north and south, at or near the intersection of Main Street and Warwick Boulevard or 29th Street, the defendants carelessly and negligently caused and permitted said street car to run into and violently collide with plaintiff, a pedestrian, knocking him to the ground and, as a direct and proximate result thereof, plaintiff received the injuries set forth. Several assignments of primary negligence were alleged and also a charge under the humanitarian theory. The defendant in its answer denied all allegations of negligence on its part and alleged contributory negligence on the part of plaintiff.

At the close of all the evidence defendant moved for a directed verdict, which was overruled. Plaintiff thereupon offered his main instruction, which submitted the cause to the jury solely upon the humanitarian theory.

The evidence disclosed that Main Street, about 76 feet wide, approaches 29th Street from the north on an upgrade of about 5 percent. The northeast corner of Main Street and Warwick Boulevard (merged at that point with 29th Street) is 50 to 60 feet further north than the northwest corner of 29th and Main Streets. A pedestrian, therefore, crossing from the northeast corner of Warwick and Main, and walking due west, would arrive on the west side of Main Street about 50 or 60 feet north of the north curbline of 29th Street as it enters Main Street from the west. A concrete loading platform or safety "island" for use of passengers boarding or alighting from southbound streetcars at the northwest corner of 29th and Main Streets is constructed close to and parallel with the west rail of the west or southbound track, beginning about 5 feet north of the north curbline of 29th Street, as it enters Main Street from the west, and extending northward 67 and a fraction feet, including over 17 feet of tapered abutment at its north end.

Plaintiff testified that about 1:00 p. m. he was walking south on the east side of Main Street toward 29th Street or Warwick Boulevard, preparatory to crossing Main Street westward at that place to board a streetcar on the southbound track. At the corner he waited until the green light shone for the east-west traffic, and when that signal appeared he stepped into Main Street and at that time looked north and saw a southbound streetcar approaching about 125 or 150 feet distant. He was walking in a southwesterly direction toward the south end of the safety zone or "island", located immediately west of the west rail of the southbound track, as described. The streetcar was not coming fast. When he had reached the east rail of the northbound track he saw an automobile turning from the south and west at 29th Street at a fast rate of speed, squarely in front of him, within 10 or 12 feet. At that time he looked at the streetcar again and it was about 10 feet north of the north end of the safety zone. He quickened his pace to avoid the automobile and turned directly toward the west, and the automobile passed very close behind him. When he reached the east rail of the southbound track he hesitated to ascertain exactly where he was, and looked again at the streetcar which was coming at 10 miles an hour, and was within 10 feet of him "or something like that". He turned to get out of the way, threw up his hands, which contacted the front end of the streetcar, and was then hit by it and knocked to the pavement.

On cross-examination plaintiff said that when he left the northeast corner of the intersection he was walking rather fast, about 4 miles an hour, and when he saw the automobile 10 or 12 feet away from him he quickened his pace to between a run and a walk, starting from the east rail of the northbound track, and the next time he saw the streetcar it was approximately 10 feet from him and he was in front of it. The distance from the east rail of the northbound track to the southbound track was about 11 feet. He said he did not have time to look again for the streetcar until he had reached the east rail of the southbound track, "when I thought where I might be getting to and it was too late to do anything about it, only try to get out of the way". He said he was afraid to try to run across the track to the platform and did not have time to step backward off the track. He said he was frightened and hesitated on the track, saw the streetcar "was approaching right on me", and he did not know which way to jump, and all he "got done" was to lift his left foot and throw up his hands and try to turn. He believed his left foot was in the air as he was trying to get away at the time of the impact. When asked if he had not testified in the Police Court that after reaching the east rail of the southbound track he saw the streetcar within 2 or 3 feet of him instead of 10 or 12 feet, plaintiff said that if he so testified he could have been correct, and if he did say so "I said it was, just knowing that it was right on me", "pretty close to me", but his present recollection was that it was about 10 or 12 feet.

One witness for plaintiff, claiming to be an eye-witness, testified that when plaintiff started westward across Main Street, the streetcar was 150 feet to the north, traveling at about 10 or 12 miles an hour; that when plaintiff was one step from the east rail of the west track at about the middle of the safety zone, the streetcar was approaching within 16 or 18 feet at about 8 miles an hour. Plaintiff then threw up his hands to avoid the impact and at the same time turning toward the streetcar, and was then hit by its left front part.

Another eye-witness for the plaintiff testified that when the plaintiff reached the east rail of the southbound track, the streetcar was within 15 feet of him, and traveling about 7, 8, or 10 miles an hour. She said that at the time the plaintiff barely avoided collision with the automobile, the streetcar was about its length north of the safety zone, and the collision took place about opposite the middle of the loading platform.

A police officer, called to the scene of the accident, testified that after talking with the operator of the streetcar, witness noted in his report that "distance danger of accident was first noted 15 feet"; that the operator told him he had been operating the streetcar 6 miles an hour and at the time of the impact, about 3 miles an hour. The witness took pictures of the front of the streetcar in order to show marks on the sign attached to that part of it. His report also showed that the operator had told him that the plaintiff had stated he thought the streetcar would stop and could not see why he ran into it.

A former streetcar operator testified that he was familiar with the type of streetcar in question, and had operated the same on Main Street; that a streetcar approaching 29th Street when the rails are dry and the equipment in good condition, with passengers in the car, could be stopped with safety to the car, operator and passengers within 12 feet, when going at the rate of 10 miles an hour; within 10 feet when going at the rate of 8 miles an hour; within 8 or 9 feet when going 3 miles an hour, and within 16 or 17 feet when going 15 miles an hour. In fact, the witness said, at that particular location the car could have been stopped as quickly with the ordinary application of air as by the use of the emergency brake. He said his estimate included the time required for the reaction on the part of the operator.

On behalf of defendant, a police officer testified that he was an eye-witness to the accident; that plaintiff came in contact with the streetcar from 4 to 15 feet from the front of the car; that he never saw the plaintiff standing on the southbound track when the streetcar was 15 feet from the plaintiff; that plaintiff was never directly in front of it; that the streetcar was approaching at 8 to 10 miles an hour. He said that at the time the automobile passed behind the plaintiff, the streetcar was about at the north end of the safety island. He admitted that he might not have seen the actual impact; that the streetcar had moved about half its length after the impact. The plaintiff was lying opposite about the middle of the streetcar. He did not hear the operator sound any bells or gongs. Witness had the windows of his car closed.

J. R. Leeds, a witness for defendant, was a passenger on the streetcar in question at the time of the accident, seated on the left side at about the middle, and testified that the impact between the streetcar and the plaintiff was some 8 feet from the front of the car; that the streetcar was moving at the time, but was stopping for the safety zone. The streetcar moved about 4 or 5 feet after the plaintiff was struck. He saw the plaintiff leaving the corner of 29th and Main, and walking in a southwesterly...