Robards v. Kansas City Public Service Co.

• Decision Date: 31 January 1943
• Parties: Lyle Robards, Respondent, v. Kansas City Public Service Company, Apellant
• Court: Kansas Court of Appeals

177 S.W.2d 709

238 Mo.App. 165

Lyle Robards, Respondent, v. Kansas City Public Service Company, Apellant

Court of Appeals of Missouri, Kansas City

January 31, 1943

Appeal from Jackson Circuit Court; Hon. Brown Harris, Judge.

Reversed and remanded.

Charles L. Carr and Virgil Yates for appellant.

The court erred in giving respondent's Instruction No. 1. Beuhler v. Festus Mercantile Co. (Mo.), 119 S.W.2d 961, 970; State ex rel. Snider v. Shain (Mo.), 137 S.W.2d 527; Evans v. Farmers Elevator Co. (Mo.), 147 S.W.2d 593, 597; Roach v. K. C. Pub. Serv. Co. (Mo.), 141 S.W.2d 800, 802; Flaspoler v. K. C. Pub Serv. Co. (Mo. App.), 151 S.W.2d 467, l. c. 468, 469. The "tail" of said instruction is erroneous in that it states that respondent is entitled to recover even though the jury should find and believe that respondent failed to exercise the highest degree of care in the operation of his trailer outfit at said time and place. This is erroneous because it would be in conflict with a sole cause instruction while under the facts in the case, appellant would have been entitled to. Flaspoler v. K. C. Pub. Serv. Co. (Mo App.), 170 S.W.2d 141, 142, 143; Thomas v. Stott (Mo. App.), 114 S.W.2d 142, 143, 144; Smithers v Barker (Mo.), 111 S.W.2d 47; Cooper v. K. C. Pub. Serv. Co. (Mo. App.), 116 S.W.2d 214, 216.

Lancie L. Watts for respondent.

(1) Respondent's instruction does not unduly enlarge or extend the danger zone beyond the point where respondent was in a position of imminent peril. Trusty, "Construction and Reviewing Instructions," l. c. 163; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512, 515; Reiling v. Russell, 153 S.W.2d 6. (2) The "tail" of the instruction was not erroneous. Crews v. K. C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Melenson v. Howell, 130 S.W.2d 555; Kick v. Franklin, 137 S.W.2d 512; Bowman v. Standard Oil Co., 169 S.W.2d 384.

Bland, J. Cave, J., concurs; Shain, P. J., not sitting.

OPINION

BLAND

This is an action for damages to an automobile trailer. There was a verdict and judgment in favor of plaintiff in the sum of $ 467.95. Defendant has appealed.

The suit grows out of a collision between an automobile trailer, owned and operated by plaintiff, and one of defendant's street cars. The collision occurred on May 28, 1936, about the hour of 6:30 A. M., at the intersection of Fifteenth Street and Indiana Avenue, in Kansas City.

Plaintiff's evidence tends to show that Fifteenth Street is an east and west street about eighty feet wide from curb to curb, having a double street car line thereon, the street car tracks being just a little closer to the north curb of Fifteenth Street than they are to the south curb; that Indiana Avenue is a north and south street, thirty-six feet, six inches wide from curb to curb south of Fifteenth Street and about twenty-eight feet, four inches wide north of Fifteenth Street from curb to curb; that Fifteenth Street is level as it crosses Indiana Avenue; that the distance between the eastbound and westbound car tracks is five feet, three-fourths inches and, between the rails of each car track, five feet. There is a stop sign at the southeast corner of Fifteenth Street and Indiana Avenue located nineteen feet south of the south curb line of Fifteenth Street. At the southeast corner of Fifteenth Street and Indiana Avenue there is a building extending to the corner of the intersection.

Plaintiff's evidence further shows that his tractor was ten feet and his trailer was twenty-two feet in length, so that the over-all length of the two vehicles was thirty-two feet; that he was engaged in hauling freight from St. Louis to Kansas City; that he reached Fifteenth Street and Indiana Avenue with his tractor and trailer about 6:30 A. M.; that it was daylight and a perfectly clear morning; that, as he approached Fifteenth Street from the south on Indiana Avenue, he stopped at the stop sign; that when he stopped he was sitting in the cab of his tractor about eleven or twelve feet back, or south of the south curb line of Fifteenth Street, the front end of his tractor being about five feet south of the curb line; that at this point he looked both ways on Fifteenth Street for traffic; that he observed the street car, that afterwards struck his trailer, approaching from the east, proceeding westward, on the westbound or north street car track on Fifteenth Street, traveling at the rate of speed of from twenty-five to thirty miles per hour. After stopping plaintiff started up toward the intersection. At that time the street car was a block away which, according to the evidence, was 271 feet east of Indiana Avenue. After entering the intersection and crossing Fifteenth Street he was traveling on the east side thereof and in low gear. He next observed the street car when it was approximately 135 1/2 feet east of Indiana Avenue. At that time the front of his tractor was practically on the south rail of the south street car tracks and was traveling at the rate of speed of about five to seven miles per hour, and the street car had not slackened its speed; that from the time that he started up until the time that he reached the car tracks he gradually increased his speed; that he then proceeded to go on across the street and arrived at a place almost across Fifteenth Street when the collision occurred. The street car and the trailer collided, the impact being approximately in the middle of the trailer.

Plaintiff stated that going at the rate of speed of seven miles per hour, under the conditions then existing, he could have stopped his tractor, with safety to himself and the load, within a distance of about seven feet. On cross-examination he stated that he saw and was conscious of the approaching street car, at no change in speed, at all times, and that he "thought he had plenty of time to beat him (the motorman) across."

Plaintiff's witness, Burt, testified that he was driving another trailer outfit immediately behind that of the plaintiff; that he sat in his cab situated on the south side of Fifteenth Street and watched plaintiff's trailer outfit cross Fifteenth Street and the street approaching the intersection; that he first saw the street car when it was eighty or ninety feet away; that he glanced at the intersection to see if it was going to be clear so that he would have time to get on across but, observing where plaintiff's outfit was, he again looked back at the street car, at which time the motorman appeared to be looking down at his controls; that the motorman then raised his head and he saw plaintiff's trailer outfit thirty or forty feet in front of him; that the motorman then let loose of the controls, turned around and ran back toward the center of the car, taking about three steps before the moment of the crash; that the street car continued at its normal rate of speed without slackening until it hit the trailer; that the collision raised the front end of the street car into the air; that there was a terrific crash and the trailer outfit and the street car stopped.

Plaintiff introduced an expert witness, who testified that, under the facts and circumstances in question on the day of the collision, a street car going at the rate of speed of twenty-five miles per hour could have been stopped, in an emergency, within seventy-five to eighty feet.

Defendant's evidence tends to show that the street car in question was proceeding at the rate of speed of between eighteen and twenty miles per hour when the operator of the car first saw the trailer and tractor some ninety feet away; that the tractor and trailer were then coming into Fifteenth Street, from Indiana Avenue, at a speed of twelve to fifteen miles per hour; that when the operator saw that plaintiff was coming on across the street he rang the bell, applied the air and slowed the car down; that at that time plaintiff slowed his trailer and tractor up a bit and he, the operator, thought that plaintiff meant for him to go ahead of plaintiff, but that the latter continued on; that at that time the operator saw that plaintiff was not going to stop; that by that time the street car was about thirty-five feet from the intersection; that the operator then applied the air and threw the car in emergency; that immediately, thereafter, the trailer and the street car collided; that the motorman stepped back from the vestibule just before the collision; that the trailer and tractor had swerved in a northwesterly direction. According to the operator of the street car the collision was with the lefthand side of the street car and slightly behind the front corner of the right-hand side of the trailer. The collision caused the vestibule to be pulled off to the right-hand side or toward the north.

The operator of the street car testified that, under conditions existing on the day in question, the car that he was operating, could have been stopped in an emergency in the following number of feet: thirty miles per hour 175 to 200 feet; twenty-five miles per hour 125 to 150 feet; twenty miles per hour 100 to 125 feet; fifteen miles per hour ninety to ninety-five feet.

Defendant complains of error in the giving of the following instruction on the part of plaintiff:

"The court instructs the jury that if you believe from the evidence that on May 29, 1936, at about 6:30 A. M., the defendant, by its motorman operated a westbound street car on the north track of Fifteenth Street, and that as said street car approached the intersection of Fifteenth Street with Indiana Avenue, both in Kansas City, Missouri plaintiff's trailer outfit was moving toward said tracks from the south side thereof, and if you further find that it would have been apparent to a reasonably careful motorman, under all the facts and circumstances, that plaintiff would...