Phillips v. Yellow Cab Co.
| Decision Date | 05 January 1931 |
| Citation | 36 S.W.2d 419,225 Mo.App. 1172 |
| Parties | THOMAS H. PHILLIPS, APPELLANT, v. YELLOW CAB COMPANY ET AL., RESPONDENTS |
| Court | Kansas Court of Appeals |
Rehearing Denied 225 Mo.App. 1172 at 1179.
Appeal from Circuit Court of Jackson County.--Hon. Ralph S. Latshaw Judge.
REVERSED AND REMANDED.
Judgment reversed and remanded.
Harry G. Kyle and Walter A. Raymond for appellant.
Hogsett & Boyle and Charles L. Carr for respondents.
Trimble, P. J., absent.
A suit in damages for personal injury. The facts are as follows: Plaintiff instituted this action against the Yellow Cab Company and A. D. Sizemore. The defendant, Yellow Cab Company, is a corporation engaged as a common carrier, operating a number of taxicabs in the city of Kansas City, Missouri. Defendant Sizemore is a citizen of Kansas City and owns and drives an automobile. Plaintiff was and is a skilled laborer and at the time of the injury complained of was a resident of Kansas City, and on June 3, 1927, was in the employ of one Holcker as a builder of automobile bodies. On the day in question, plaintiff worked until about five o'clock P. M., quitting time. He and a friend named Brock walked west on the north side of Fifteenth Street in Kansas City, Missouri, to Garfield Avenue, a street running north and south, intersecting Fifteenth Street at right angles. Plaintiff and Brock crossed Garfield Avenue and then turned south on the west side thereof, and thence walked south along the allotted space used by pedestrians across Fifteenth Street.
At that time an automobile driven by defendant Sizemore was being driven east on the south side of Fifteenth Street and approaching the intersection. About two car lengths behind the Sizemore car and a little to the north thereof, and going in the same direction, was a Ford car operated by one Dwight E. Beatty, in which were riding Beatty's wife and Homer C. Adams. The Sizemore and Beatty cars, as shown by the evidence, were being operated at a speed of approximately fifteen miles per hour. As the cars approached Garfield Avenue, one of defendant's yellow cabs, going eastward, passed the Beatty car on the left, at a speed variously estimated at thirty-five to forty-two miles per hour. The yellow cab was astride the south rail of the eastbound street car track and the Sizemore and Beatty cars were between the car tracks and the south curb of Fifteenth street.
The street car company, which is not involved in this suit, maintains a double line of track on Fifteenth street. Plaintiff's evidence tends to show that the yellow cab did not slacken its speed as it approached the intersection, and was headed directly at plaintiff and Brock. Plaintiff observed the cab at a distance of about sixty to eighty feet west. Plaintiff testified he could not estimate the speed of the cab but thought he could cross the street before the cab entered the intersection, and he proceeded in a straight line south. When he reached a point in line with the approaching cab, he saw it coming toward him and about fifteen to sixteen feet distant. The testimony is that plaintiff and Brock had just crossed the south rail of the east bound track when they both jumped, or ran, to get out of the line of the oncoming cab. It appears that Brock did not jump or run as far as plaintiff and was not struck; but that the left front fender of the Sizemore car struck plaintiff and knocked him to the street, severely injuring him. The yellow cab did not strike plaintiff, did not slacken its speed but proceeded across the intersection. The testimony is that the Sizemore car missed striking Brock by a distance of about two feet. Plaintiff was picked up and taken into a store nearby, from whence he was taken in an ambulance to the General Hospital, where he was confined for about eight weeks. On examination plaintiff was found to have sustained five fractures of the public and sacral bones.
The amended petition alleges negligence, as follows:
"That the agent and servant of the defendant Yellow Cab Company negligently and carelessly drove said cab down said 15th street and into said intersection at a high and negligent rate of speed, to-wit: thirty to forty miles per hour, and directly towards the plaintiff creating an emergency and creating a reasonable apprehension in plaintiff's mind that unless he ran to the south he would be struck by said cab, and in attempting to get out of the way of said cab and acting in said emergency plaintiff ran towards the south and in front of said cab and was struck by said automobile driven by the defendant Sizemore; that the defendant Sizemore was guilty of negligence in that he failed to stop or swerve his automobile to one side and thus avoid striking the plaintiff; that he negligently drove said automobile into a violent collision with the plaintiff after he saw or by the exercise of highest degree of care could have seen plaintiff in a position of peril in time by the exercise of the highest degree of care to have stopped his said automobile, slowed down the same, or to have swerved the same to one side in time to have avoided the accident, but he negligently failed to do so."
Damages are sought in the sum of $ 7500. The separate amended answer of the Yellow Cab Company is, first, a general denial, and as affirmative defense pleads contributory negligence. The answer of defendant Sizemore is a general denial. The reply also is a general denial. The cause was tried to a jury. At the close of plaintiff's evidence, defendant Yellow Cab Company asked an instruction in the nature of a demurrer to the evidence, when the following occurred:
Thereafter and in due time plaintiff filed his motion to set aside the nonsuit taken with leave, which motion was overruled, and from this ruling plaintiff has appealed.
The only point involved in this appeal is whether the court erred in overruling the motion to set aside the nonsuit; and in this connection plaintiff insists the court erred (a) in refusing to submit to the jury the question of defendant's negligence; (b) in holding plaintiff was guilty of contributory negligence. Under point "a," it is insisted there was substantial evidence in plaintiff's behalf in support of the allegation that defendant Yellow Cab Company was guilty of negligence. In considering the demurrer we are mindful of the rule that the plaintiff's evidence must be taken as true, and that he is entitled to all reasonable intendments thereof, as well as any favorable evidence introduced in defendant's behalf. The evidence of record by all reasonable intendment shows defendant's driver drove the cab into the intersection at a speed variously estimated at from thirty to forty-two miles per hour at the time it was passing the Sizemore and Beatty cars, the three cars moving toward the east; that, without slackening speed, the cab bore down upon plaintiff, making it necessary for him to move quickly out of its path.
The testimony shows plaintiff first saw the cab approaching when it was sixty to eighty feet away; that he thought he had time to cross ahead of it, and so proceeded; that when he next saw the cab it was some fifteen to sixteen feet away from him and coming at a high rate of speed; that he thought it necessary to leap to avoid it and in so doing, he was struck by the Sizemore car which, as the evidence shows, was some ten to fifteen feet south of the cab, but when passing plaintiff, had swerved somewhat to the north. The testimony is not clear as to whether plaintiff was struck by the Sizemore car or whether he ran against it. We think this point not material here because if the alleged negligence of the cab driver placed plaintiff in what he conceived to be a position of peril, and caused him to make a sudden or frantic effort to escape, and in so doing he was struck, or ran into or against the Sizemore car, the difference is immaterial. Plaintiff states he did not look and did not see the Sizemore car. It was held in Stanley v. Helm, 204 Mo.App. 159, 223 S.W. 125:
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Phillips v. Yellow Cab Co.
...Material Omitted] [Copyrighted Material Omitted] 225 Mo.App. 1172 at 1179. Original Opinion of January 5, 1931, Reported at: 225 Mo.App. 1172. Judgment reversed and CAMPBELL, C. Boyer, C., concurs. Trimble, P. J., absent. OPINION CAMPBELL, C. ON REHEARING. In the motion for rehearing herein......