Ramel v. Kansas City Public Service Co.

• Decision Date: 30 April 1945
• Docket Number: No. 20556.,20556.
• Parties: RAMEL v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

187 S.W.2d 492

RAMEL v. KANSAS CITY PUBLIC SERVICE CO.

No. 20556.

Kansas City Court of Appeals. Missouri.

April 30, 1945.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

"Not to be published in State Reports."

Suit by B. F. Ramel against the Kansas City Public Service Company to recover for damages resulting from a collision between plaintiff's automobile and defendant's street car. From a judgment for plaintiff, defendant appeals.

Affirmed.

Charles L. Carr and Harding, Murphy & Tucker, all of Kansas City, for appellant.

E. E. Thompson, Alfred H. Osborne, and Thompson & Osborne, all of Kansas City, for respondent.

CAVE, Judge.

This is a suit for damages resulting from a collision between plaintiff's automobile and defendant's street car. The trial resulted in a verdict and judgment for plaintiff in the sum of $1,000. Defendant appealed.

Plaintiff alleged several grounds of primary negligence and negligence under the humanitarian rule, in that defendant failed to stop its street car or retard the speed thereof after its operator saw, or could have seen, plaintiff in a position of peril.

The answer was a general denial, coupled with specific charges of contributory negligence. The case was submitted to the jury under humanitarian negligence only, in failing to stop.

Error is assigned: (1) On the refusal of its instruction in the nature of a demurrer at the close of all the evidence; and (2) on plaintiff's instructions Nos. 1 and 3.

The collision occurred at a rather irregular intersection of Summit Street, West Pennway and Twenty-first Street. Summit Street runs north and south, is 36½ feet wide, and defendant's single track street car line is located approximately in the center of that street for southbound street cars. West Pennway, east of Summit, extends approximately due east and west and enters Summit Street on the east side thereof at right angles. It is 50 feet 3 inches wide. West of Summit, West Pennway extends in a northwesterly direction and is approximately 51 feet north of the east entrance of West Pennway. Twenty-first Street extends almost due west from the intersection and is 29 feet 3 inches wide.

The collision occurred about 5 p. m., July 31, 1941. The weather was clear and the streets and rails were dry. Plaintiff was operating his Buick sedan westerly on West Pennway; defendant's street car was being operated southward on Summit Street. There is a stop sign on Summit Street 73 feet 6 inches north of the north curb of West Pennway east of Summit, at or near which the street car stopped. So much for the physical facts and surroundings, about which there is little, if any, dispute.

In passing on the demurrer to the evidence, the court must view the testimony in the light most favorable to plaintiff. With this axiomatic principle in mind we detail the testimony touching the cause of the collision.

Plaintiff's evidence is to the effect that when he was 20 or more feet east of the intersection he saw the street car 50 feet north of the stop sign. He entered the intersection at about 3 or 4 miles per hour; "as I came into the intersection another car pulled into the stop sign, this car stopped and started forward and I slackened my speed going into the intersection, * * *. He was coming out from the stop sign, as I went into the intersection, * * * we were gradually coming together there, I stopped, this fellow made a complete pause, * * *. I paid a lot of attention to this other car, he and I came out into the intersection at approximately the same time and the first thing I knew the street car had hit me. * * * He came out of that stop sign, shifted into low and came out at a good rate of speed, faster than I was traveling. * * *

"Q. Well, did the southbound automobile come into the intersection ahead of the street car? A. Yes, sir, it did.

"Q. Well, how much? A. Well, he started nosing out ahead of the street car and I honked my horn and he stopped. * * * I was stopped at that time he stopped. * * * Twelve foot is the distance the street car was away from me when the other automobile stopped. * * *

"Q. And the closest he ever got to you, was 12 feet of you, wasn't it? A. I believe 6 feet. * * *

"Q. Your best estimate, when you stopped on that street car track, that street car was 12 feet from you? A. Yes, sir. * * *

"Q. How long do you judge * * * that you had been standing on the street car track before you were struck? A. About 3 or 4 seconds. * * *

"Q. What would you say the speed of the street car was when it was say 30 feet from your automobile? A. It was going about 3 miles an hour.

"Q. And what do you judge the speed of the street car at the time it actually hit your car? A. I believe that he was going a little faster then, probably 5 miles an hour. * * * I was pushed about 6 or 6½ feet south on Summit Street, * * * at the time my automobile was struck the front end of my car was extending out over the west rail about 5 or 5½ feet. * * *

"Q. Did that southbound automobile, at any time before the collision, move far enough south as it crossed the intersection to get directly into the path of your westbound automobile? A. No.

"Q. * * * But to the contrary, it stopped, I believe your last answer was, about six feet north of the path of your westbound automobile? A. That is right. * * *

"Q. So when it stopped there was nothing in front of your car with which you could collide if you had gone straight on at the time you stopped? A. That is right."

Plaintiff's witness Rice, who was a passenger on the street car, testified that when he first saw plaintiff's automobile it was directly in front of the street car and standing on the track about 30 or 35 feet away. The street car was then traveling between 3 and 5 miles an hour and did not reduce its speed. Defendant's witness Stieglitz testified that when plaintiff's automobile drove onto the tracks the street car was 12 or 15 feet away.

There was evidence to the effect that under the circumstances and conditions at the time and place of collision, the street car could have been stopped in an emergency, including reaction time, as follows: at 3 miles per hour, not more than 8 feet; at 5 miles per hour, 8 to 10 feet; at 8 miles per hour, 12 to 16 feet; and at 10 miles per hour, 15 to 18 feet.

Defendant introduced very substantial evidence to the effect that after its street car left the stop sign and as it entered the intersection, plaintiff's car dashed out from behind other westbound automobiles, which had stopped at the entrance of the intersection awaiting the passage of the street car and other southbound traffic; and that plaintiff's car dashed immediately in front of and ahead of the street car in such close proximity that the motorman had no chance to stop before the impact.

Defendant's operator testified that he stopped the street car to discharge passengers just north of the north curb of West Pennway and then released the brakes and entered the intersection and was about 15 feet south from the curb line of West Pennway when he first saw plaintiff's automobile. According to the plat, this would be about 56 feet from the point of collision. He saw two automobiles crossing the intersection from east to west. One of those stopped about 15 feet east of the car track while the other, plaintiff's, continued on at a speed "between 25 and 30 miles an hour, * * * but just before he got to the track, between 10 and 12 miles." At that time and under those conditions, the operator said, "* * * there was an automobile coming right down on the righthand side of the street car and nosed past my street car just about that much (indicating). * * * He stopped about 8 feet back from the line where this (plaintiff's) automobile was traveling and stopped on the track." When plaintiff's automobile was within about 25 feet of the track it was going 25 or 30 miles an hour and the street car "probably 10 miles an hour." Plaintiff "rammed on his brakes and stopped right on the track. * * * I was within about 6 feet of him when he made his dead stop. * * * When I seen this man (plaintiff) passing, (referring to the westbound car which had stopped) I adjusted my brakes as quickly as I could and about 6 feet from him he shot right on the track and the front end of my car struck him right at the front wheel and front door * * * and he just stuck right there and stopped dead still." The operator also testified that under the conditions then and there existing he could have made an emergency stop, going at 10 miles an hour, in about 17 feet; and at 7 miles an hour, in about 8 or 9 feet; and at 3 miles an hour, in about 5 to 7 feet; but "without jarring the people" (passengers), he could have stopped within 12 or 15 feet, going at 3 miles per hour; within 25 feet at 5 miles per hour; and within 17 or 18 feet at 8 miles an hour.

We cannot concern ourselves with the weight of the evidence or what the verdict should have been. If there is substantial evidence to support the judgment, the demurrer was properly overruled.

Plaintiff knew the street car was approaching and crossing the intersection. Obliviousness is not in the case. It was tried and submitted on the theory of inescapable peril.

In support of its contention that the court erred in not sustaining its demurrer to the evidence, and in giving plaintiff's instruction No. 1, defendant argues that when all the evidence is considered plaintiff was not in a place of inescapable peril, and that the humanitarian doctrine is inapplicable for the reason that: "(1) If respondent (plaintiff) stopped and stood on the track for 3 or 4 seconds with an open way before him so that he could instantly move off, then he was not in a place of inescapable peril because there was an immediate means of escape which the motorman saw and, in the absence of some signs to the contrary, he had a right to act upon appearances and to presume that respondent would move on; (2) if, on the...