Powell v. Kansas City Rys. Co.

• Decision Date: 30 December 1920
• Docket Number: No. 21484.,21484.
• Parties: POWELL v. KANSAS CITY SYS. CO.
• Court: Missouri Supreme Court

226 S.W. 916

POWELL v. KANSAS CITY SYS. CO.

No. 21484.

Supreme Court of Missouri, Division No. 1.

December 30, 1920.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Suit by Emma J. Powell against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

This suit was instituted in the circuit court of Jackson county by the plaintiff against the defendant for the purpose of recovering damages sustained by her through personal injuries inflicted upon her by the alleged negligence of the defendant. The trial was before the court and jury, which resulted in a verdict and judgment for the plaintiff in the sum of $15,000. After the filing a motion for a new trial, the court intimated that it thought the verdict was excessive, and that, if $3,000 was not remitted, the motion would be sustained. Thereupon the plaintiff entered a remittitur of $3,000 and all the interest due on the judgment from the date of its rendition to the date of the remittitur. The court then overruled the motion for a new trial and rendered judgment for the plaintiff for the sum of $12,000, and the defendant duly appealed the cause to this court.

The sufficiency of the pleadings are not questioned, and for that reason they will be put aside.

A summary of the evidence has been made by counsel for both plaintiff and defendant, and I am unable to see any material difference between them; but I will use that of respondent, because it is a little fuller and more complete.

Evidence for Plaintiff.

Henry M. Pierce, Jr., testified in substance that:

I drive for my father who runs a transfer business, and I live with him at 2200 Paseo. I am 25 years old. Plaintiff was hurt about 6:30 p. m., July 4. She was seated on a three-quarter size Willys-Overland truck. It was 54 inches wide and the bed was 8 feet long—total length of truck about 13 feet. Eighteen people were on the truck. The party gathered at our home. We put some boards on the truck there, and they were seated on them, four or five in a row. I was driving. Helen Fenno sat beside me. We got gasoline at Fifteenth and Bennington. From there Miss Fenno drove the machine. At the second street west of where the accident occurred, and just as we turned on the Washington Park boulevard, I took charge of the wheel. I was going 6 or 7 miles per hour. I looked west, saw no street car, so got on the railway track, drove east on the east-bound street railway track to the intersecting railway track. I should judge about 20 feet from the railway track I stopped the truck. I saw I couldn't go on farther and just had to turn around, and I thought that was as good a place as any. There was a train there. Well, I was going to look around and see if any one was coming—a street car, or anything, was coming. I was just starting to look around when we were hit and shoved up within 3 feet of the railroad track. Then there was a good deal of excitement, some outcry of the women, and I just saw two men carrying her (plaintiff) across the tracks there to the doctor's office.

Cross-Examination:

Steering device was on the right-hand side. :From the gasoline station at Fifteenth and Bennington, then turned north on Bennington. Then we went east on Washington Park boulevard. I stopped at the track.

As I tell you the other car was coming west, and I just turned down there and turned down the street to the safety stop, so that if a car did come it would have plenty of room to stop and let us get out of there. When we drove up to the car tracks and stopped, I started to get out. I looked to the other side, and two men threw their hands up to their faces, and I didn't get to the street.

Well, I saw, the men. I don't think I got all the way off. I was not at the wheel when the accident happened. The lady had hold of the after we were hit. When we were hit, the clutch then. The car jumped back to neutral motortruck, at its east end, was about 10 feet from the railway tracks. I turned my car around again after they hit it. They bent the back castings, broke the end gate and a stake or two.

J. H. Baker:

I saw a collision in 1916. I was standing in front of a drug store. A truckload of young people came along, going east, and run into a blind end, and they run into the track and stopped. They were there some one or two minutes, and the car came right in and struck them from the back. I didn't notice the street car until it made the bend, possibly twice the length of the street car from point of collision.

Q. How far was that bend from the place where the car was hit? A. Oh, possibly 100 feet. The street car stopped right after it hit the truck. It didn't drive the truck any farther than from 1 to 4 feet. The street car was moving from 2 to 6 miles per hour when it hit the truck. The truck stood possibly 3 or 4 feet from the railway tracks. When the street car hit the truck, it just drove it straight ahead.

Cross-Examination:

Cambridge avenue is the street just west of the first steam railway tracks there. The next street west of Cambridge is Norton. No, Cambridge, Ewing, and Norton. Ewing street is the first block running north and south that is west of these railway tracks that will take you over to Independence road. Washington Park boulevard is paved to the Frisco right of way. I think the auto truck was within 5 or 6 feet of the Frisco tracks when the street car hit the truck. Of course, it (the street car) was not going very fast or the weight of the car would have knocked it clear over the tracks, but they were going fast enough to mash this end gate.

Cross-Examination:

East-bound street cars always stop a minute before crossing those Frisco tracks.

Plaintiff, Emma Powell, testified:

I will be 22 years old the 22d day of April, 1918. I work in, the delivery office, entry clerk, Kline Cloak Company. The 4th of July, 1916, being invited by Mr. Pierce, I was riding upon an auto truck. I was in the back, partly on the end gate. I think the end gate was turned down. I faced the rear. Mr. Overton was sitting back there. I think 20 of us, mostly young people, were on the truck. They had not decided where to go; they were going somewhere, but I don't know where. I don't know who was driving. I didn't look at the front at all.

Q. How did you happen to be taking this trip to Fairmount Park? A. Well, two of the young ladies that were `with us came to the house and asked me to go. Mother said I better go, that the girls wanted me to go, and for me to go on, and the old folks were all going, and knowing the people and all, and the old folks, of course, I decided to go.

Q. Well, you were invited by two of the young ladies to go? A. Yes, sir; I was.

I remember of the truck stopping. I don't know where or anything. Well, the truck stopped, and the young man that was at the end gate with me got off to go over to the drug store to get some sparklers, so we could have them on the way over there, and after we got to the park, and just as he got off of the truck —as near as I can remember, he was standing right close to the truck—just back of it and to one side of it. Well, he was talking to me and looking right at me. I was facing northwest. Well, I just looked up with the car about —I don't know how many feet away. I didn't get a bit excited, naturally thinking, we were standing still, that the car would come to a stop. I don't know where we were standing, but I thought the car would stop, and the next thing I knew it ran right into us. The truck was still. I didn't see the street car was moving so terribly fast at the time. I was rendered unconscious.

Phillip M. Overton:

I am 23 years old. Well, at the time of the accident there were four of us on the end gate. Miss Powell was directly to the east of me. Albert Cartwell and Lloyd Tarwater sat beside us. The truck was standing still. Well, directly I got off it was stopped still, because I was directly behind it.

Q. Did you move out from behind the truck before the car came against it? A. No, sir; I had to jump to get out of the road. You really would not say jump; a stepped off the track when I saw they were going to hit us.

Q. How close to the tail end of the truck were you standing when you stepped to one side? A. Not more than 3 feet.

Q. Then tell whether or not the street car passed where you had been standing? A. Yes, sir; the street car passed and knocked the truck several feet on past where I had been standing.

Q. Tell the jury whether or not that truck backed up against you and up against the street car? A. No, sir; the truck did not back, because I was directly in the road of it standing there.

Further answering, he said:

Part of the stakes on the truck were splintered and broken and the end gate irons; the end gate irons were mashed, and there was glass strewn about. The young lady had her arm cut.

Q. How far did the street car knock this truck when it struck it, as you remember? A. Well, I judge 15 or 20 feet.

Q. Why did you jump; did some one yell? A. No, sir; I had my back turned to the car immediately after I got off the truck, and I glanced around and saw that he was not going to be able to stop, and I stepped off of the track.

Q. Did you hear a bell ring on that car? A. No, sir.

Esther Overton:

I was in the front end of the car, facing the back of the car. There were three or four rows of seats, so I couldn't see. I was sitting on one of those cross-boards. There were 20 of us young people and not a very large truck. My impression is we were waiting for the train. I couldn't see whether it was just in front of us, or was just coming; but I know I saw it, and it seemed to be going slow.

Q. Then your impression was that you had stopped for that? A. Yes, we were waiting for the train.

Q. How long had the truck been standing there before the car (street car) struck you, the best way you can show it? A. I think it must have been three or four minutes,...