Perry v. Fleming

Decision Date06 June 1927
Docket NumberNo. 16030.,16030.
PartiesPERRY v. FLELMING et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Charles L. Perry against Fred W. Fleming and another, receivers of the Kansas City Railways Company. From a judgment for plaintiff, defendants appeal. Reversed, and cause remanded.

Chas. L. Carr, Chas. N. Sadler, John R. Moberly, E. E. Ball, and Harding, Murphy & Tucker, all of Kansas City, for appellants.

Gamble, Trusty & Pugh, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $12,000 but to avoid the granting of a new trial by the court he remitted the sum of $4,500, leaving a judgment in the sum of $7,500. Defendants have appealed.

The facts show that on the 14th day of January, 1924, plaintiff was driving west on Ninth street in Kansas City, Mo., where he came into collision with an east-bound street car at a point on said street between Welch and Norton avenues in said city. Ninth street is 36 feet in width; it runs east and west and is intersected by the following north and south streets from east to west in the order in which they are mentioned: Spruce, Welch, Norton, Myrtle and Cleveland. There was a double street car track on Ninth street, east-bound cars using the south track and west-bound cars the north. Plaintiff was thoroughly familiar with these streets and the conditions present as his office and residence were located in the vicinity of where he was injured. Plaintiff testified that there had been a snowfall on the 10th or 11th of January and that Ninth street was covered with snow and sleet; that the street was more or less uneven and rough and it had just begun to thaw at the time he was injured. There was evidence that the rails of the track had sunk so that they were level with the pavement and were even below the level of the street in places. Plaintiff further testified that street cars and vehicles had been using the street since the snow and had caused ruts with sides of packed snow and ice to be made along the rails of the street car tracks; some of the witnesses stated that the rut along the north rail of the east-bound track was as much as 8 inches deep; that the street was higher in the center, sloping to the north and to the south.

Plaintiff testified that at about noon of the day in question he entered his Ford sedan a short distance east of Spruce on Ninth street, intending to drive west toward his home; that there was an automobile truck on the north side of Ninth street about 50 feet west of Spruce which was parked diagonally against the north curb of Ninth street; that this truck did not obstruct west-bound street cars; that he could stand at the junction of Ninth street and Spruce and see a street car at Ninth and Cleveland, four blocks west; that when he was crossing Spruce avenue he noticed a street car between Myrtle and Norton avenues, two and a half blocks away; that it was down grade from Myrtle to Welch but practically level between Welch and Spruce; that at that time he was in low gear and proceeding at the rate of 4 or 5 miles per hour; that he was driving north of the north rail of the west-bound track; that seeing the truck in front of him he turned toward the south to go around it; that when he so turned he started to skid and his left front and rear wheels slid into the rut along the north rail of the east-bound track; that both wheels of his car went into the rut at the same time and about 15 or 20 feet west of the truck; that at the time his car slid into the rut he "looked up" and saw the car "just west" of Norton avenue, about a block away, or, possibly, a block and a half. There was other testimony tending to show that the car stopped at a safety stop and let off passengers at a point immediately west of Norton. Plaintiff testified that at this time he could not tell whether the car was moving or was stopped but he continued forward in the rut; that at the time he dropped into the rut he was going at the rate of from 4 to 6 miles an hour and continued to pick up speed so that he reached a speed, while both of his wheels were in the rut, of 6 or 8 miles per hour.

Plaintiff further testified that while going forward in the rut "he kept trying to get those wheels out of the rut""kept trying to get out." I would get the front wheel on the rail and it would drop back, and I would get it up again and it would do the same thing—get the front wheel on the rail and drop back. I had proceeded that way for some time. Every time I would get it on the front rail it would drop back into the rut; the front wheel"; that he succeeded in getting the front wheel up out of the rut three or four times but it would drop back and finally after he had driven in this manner from 40 to 70 feet he succeeded in getting his front wheel out of the rut and the front end of his automobile toward the northwest; that he did not look again from the time he slid into the rut until his front wheel got out of it; that he then glanced up and saw the street car 40 or 50 feet away; that at that time the street car "seemed to be running"; that he continued in his effort to get his left rear wheel out of the rut, without success, by guiding the car to the northwest; that he continued to increase his speed so that he was going 8 to 10 miles an hour, running about 30 or 40 feet when he collided with the street car; that the collision occurred about halfway between Welch and Spruce, "a little closer" to Welch than Spruce. At one place in his testimony plaintiff stated that the point of the collision was 250 feet west of Spruce and that his best judgment was that Spruce and Welch were 500 feet apart but that he could not be sure of this.

Plaintiff testified that he had not "noticed anything about the speed of the car" until he got his left front wheel out of the rut and had formed no opinion as to the danger; that during the time he was running the last 30 or 40 feet he thought that he would get out of the rut; that he did not see the street car during all of the time his front wheel was out of the rut; that "I was more concerned with getting out of that rut"; that he continued on because he "figured on" getting into the clear. There was evidence that the street car gave no signal of its approach. It was a clear day and there was nothing to obstruct the view of the motorman or plaintiff.

Plaintiff's witness, Cox, testified that he was standing on a truck at the southwest corner of Ninth street and Spruce, facing west; that the first he .saw of the occurrence was after the left wheels of plaintiff's car went into the rut; that when he first saw the situation the street car was at Norton; that the street car continued forward at the rate of 25 or 30 miles an hour and went about 150 to 175 feet after the collision before stopping; that when the street car stopped its front vestibule was "just past the west side of Spruce"; that he saw plaintiff get his front wheel out of the rut and that plaintiff traveled from 75 to 100 feet after that time before the street car hit plaintiff. The witness had been a motorman and testified that a street car, at the time and place in question, going at the rate of 25 to 30 miles per hour, could have been stopped in 100 to 125 feet; that when the street car reached Welch avenue and got upon level ground it could have been stopped in 50 or 55 feet; that the automobile ran 230 to 265 feet from the first time he saw it in the rut to the point of collision. On cross-examination the witness stated that plaintiff drove 75 feet with the rear wheel in the rut after the front wheel cleared the rut; that plaintiff's automobile was running at the rate of 10 to 12 miles an hour during the time that he saw it.

Plaintiff's witness, Birgin, testified that he was about 125 feet east of Spruce, facing west, at the time in question and that he saw the Ford sedan in the middle of the street "and it seemed to be making an effort to get to the right side of the street and having very poor luck with it"; that this continued until the collision; that the Ford sedan was making a "wobbling movement" ; that just before the collision the front end of the Ford "headed out toward the right side of the street"; that the left wheels of the Ford were in a rut along one of the east-bound street car rails.

Plaintiff's witness, Martin, testified that he was a passenger upon the car that collided with the automobile; that he lived on Ninth street, the fourth door east of Norton; that he alighted from the car at Norton "on the west side of the street at the safety stop there." A photograph, which the witness identified, shows that the safety stop, located at a pole, was only a few feet west of the intersection of Norton with Ninth street. The witness further testified that after he alighted from the street car he started to his home toward the northeast, the car proceeding on ahead of the witness. The witness testified:

That the car " * * * dropped down the hill there, and when I got to a point about the middle of the street, I saw the automobile come out from around the truck sitting out there in front of the furniture store at Spruce, and he swung around this truck. As he did that, he skidded over into the ease-bound track, and he went flopping like this [indicating]. I first thought he broke his steering gear.

"Mr. Sadler: I object to that—what ills thought—and ask that it be stricken out. "Mr. Gamble: Yes; strike that out.

"A. I saw it wobble."

That the collision occurred about 175 feet west of Spruce; he was asked:

"Q. How long did this automobile continue these erratic movements you have described here before this collision occurred? A. All the way from this corner [indicating]. This automobile was standing in front of the furniture store. He kept doing that until he hit the car.

"Q. From a point...

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