Pettitt v. Kansas City

• Decision Date: 19 January 1925
• Docket Number: (No. 15227.)
• Citation: 267 S.W. 954
• Parties: PETTITT v. KANSAS CITY.
• Court: Missouri Court of Appeals

267 S.W. 954

PETTITT v. KANSAS CITY.

(No. 15227.)

Kansas City Court of Appeals. Missouri.

January 19, 1925.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

"Not to be officially published."

Action by Ernestine C. Pettitt against the City of Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

John F. Cell, of Kansas City, for appellant. Solon T. Gilmore and John D. Wendorff, both of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $500, and defendant has appealed.

Plaintiff was injured about 9 p. m. of March 4, 1922, when a Ford automobile truck being driven by her husband," in which she was a passenger, struck a fire plug located on the west side of Locust street between Thirty-Ninth and Fourtieth streets in Kansas City, Mo. The night was dark, and there was no light on Locust street between Thirty-Ninth and Fourtieth streets, the nearest light being 340 feet away from the plug, and at the intersection of Locust street with Fourtieth street. The plug was situated on the west side of Locust street about midway of the block. Beginning at Thirty-Ninth street, there was a declivity in Locust street, and it curved in a southeasterly direction until it reached a point where the plug was situated, where it made a turn, and thence ran south. The plug was situated on the turn in such a way that the occupants of an automobile being driven south on Locust street from Thirty-Ninth street, with its light thrown directly ahead, would not see the plug on account of the curve in the street. The plug was of a dark red color, and plaintiff's husband testified that he did not see it prior to striking it. He testified that he had been driving cars about 10 years; that he was going at the rate of about 8 or 10 miles an hour when he struck the plug; and that the first he knew of its presence was when his right front wheel struck it, bringing the car to a sudden stop.

There was a regular curb on the west side of Locust street running in a northern direction from the plug. This curb was almost perpendicular, and 7½ or 8 inches high. It extended north about 40 feet, where it joined what is called a patent gutter; the sides of which were not perpendicular like the curb near the plug, but are scooped out at an angle of about 45 degrees. There was no regular curb at the plug, but beginning with it and running south was another patent gutter. Plaintiff's husband testified that the barrel of the plug was flush with the outer edge of the regular curb. There were three protrusions on the fire plug, referred to in the evidence as nozzles; one extending east 6 or 8 inches and at right angles with the west curb line, and two others extending in a northeast and southeast direction, respectively. These latter two plugs projected from the barrel of the plug a little above the east nozzle. For convenience these nozzles will be referred to as the east nozzle, the north nozzle, and the south nozzle. The north nozzle extended 2 or 3 inches east of the outer edge of the curb.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given, for the reason that it is claimed that it was impossible for the right front wheel of the automobile to have struck any portion of the plug without going upon or over the curb, or leaving the roadway proper, and for that reason the verdict is against the physical facts. If we were to consider all the evidence in its most favorable light to defendant, there might be some merit in this contention. But the rule in passing upon the propriety of a demurrer to the evidence is that the evidence and all reasonable inferences that may be drawn therefrom must be taken in their most favorable light to plaintiff. So in passing upon this point we have and will state the evidence from plaintiff's standpoint, and not from defendant's.

Plaintiff's husband testified that he was driving "naturally" at the time he struck the plug to see whether there was anything in front of him; that his automobile was headed in a southeasterly direction; that there was a very sharp curve on Locust street at the place of the collision; that Locust street was about 24 feet wide; that after striking the plug he examined it and found that the right front wheel had struck the north side of the east nozzle; that the tire had come off the rim, which was about 2½ inches wide; that the inside of the rim was against the east nozzle and the outside thereof against the north nozzle, "the wheel standing in between these two plugs like a choke"; that he found there was a mark on the inside of the rim of the right wheel; that the right fender was bent, and there was a mark on the east side of the cap of the plug, presumably where his fender had struck. On cross-examination he testified that he did not remember of seeing a mark on the north nozzle. Being confronted with his deposition he admitted that he testified when his deposition was taken that the inside of the rim of the right wheel came in contact with the north nozzle, and that the other two nozzles were beyond or south of the one that he struck; that the mark was on the north nozzle; that his fender struck the east side of the top of the cap, and that the marks on the cap and on the north nozzle were the only marks that he remembered seeing.

There was evidence on the part of the defendant...