Romandel v. Kansas City Public Service Co.

• Citation: 254 S.W.2d 585
• Decision Date: 09 January 1953
• Docket Number: No. 42987,No. 1,42987,1
• Parties: ROMANDEL v. KANSAS CITY PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 585

254 S.W.2d 585

ROMANDEL v. KANSAS CITY PUBLIC SERVICE CO.

No. 42987.

Supreme Court of Missouri, Division No. 1.

Jan. 9, 1953.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 9, 1953.

Charles L. Carr, Kansas City, E. E. Thompson and Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for appellant.

Jacob Brown, Lyman Field and Clay C. Rogers, Kansas City, Brown & Koralchik and Rogers, Field & Gentry, Kansas City, of counsel, for respondent.

LOZIER, Commissioner.

Suit for damages for personal injuries. Plaintiff-respondent (herein called plaintiff) submitted her case upon both primary and humanitarian negligence and had a verdict and judgment for $12,000. Defendant-appellant (herein called defendant) appeals, contending: Plaintiff was contributorily negligent as a matter of law and failed to make a submissible humanitarian case; error in instructions and in the admission of a deposition; and jury misconduct.

Plaintiff was struck by defendant's southbound streetcar at a point south of the intersection of Main and West Eleventh Streets in Kansas City. Eleventh Street runs east-west; it does not cross Main; both East Eleventh and West Eleventh 'dead end' on Main. West Eleventh is 36' 7"' wide between curbs.

Main runs north-south, and is 46' wide between curbs. Apparently, the intersection is level. Defendant's Exhibit A, a photograph, shows that for some distance north of East Eleventh's (projected) north curbline, Main is 'upgrade' to the Main-West Eleventh intersection. Main has two streetcar tracks; the west rail of the east (northbound) track is 5' 5' from the east rail of the west (southbound) track; the distance between the rails of each track is 4' 6 '. There is a streetcar loading and unloading zone (herein called the zone) contiguous and parallel to the east rail of the northbound track; it is 4' wide; its north end is 2' south of a pedestrian crosswalk and west of the traffic control signal hereinafter referred to as the east signal. Immediately south of the intersection is an east-west pedestrian crosswalk. Its north boundary is West Eleventh's (projected) south curbline and its south boundary is 49' 7"' from West Eleventh's (projected) north curbline; it is 13' wide; its south boundary is marked by white lines between the curbs and points about 1'-1.5' from the outside rails of the two tracks; the boundary is not marked in the intervening space. (We use the present tense in referring to conditions as they existed on the day of the accident.)

On each side of Main, at the curb about 2' south of the crosswalk's south line, are traffic control signals (herein respectively called the east and the west signals). These are combination red-yellow-green lights for vehicles and 'Walk'--'Don't Walk' lights for pedestrians. There is a similar signal (herein called the north signal) at Main's west curb on East Eleventh's (projected) south curbline; this is approximately 106' north of West Eleventh's north curb. Southbound vehicle traffic on Main is regulated by the west and north signals. Pedestrian traffic over the crosswalk is regulated by the east and west signals. When the east and west signals are 'Walk,' the west and north signals are red for southbound vehicles. The lights sequence of the east and west signals for pedestrians is: 'Walk' for 17 seconds and then 'Don't Walk.' At that 'Don't Walk,' the west and north signals for southbound vehicles continue red for 5 seconds, are yellow for 2 1/2, green for 17, yellow for 2 1/2 (during all of which time the east and west signals are 'Don't Walk') and then red again for the succeeding 17 seconds that the east and west signals are 'Walk.'

City ordinances in evidence define 'crosswalk' as 'portions of a roadway indicated for pedestrians by lines or other markings on the surface.' It is the duty of the operator of a vehicle: On his green light, to yield the right of way to pedestrians 'lawfully within the crosswalk' when his light becomes green; on his yellow-after-green light, to stop ('unless so close to the intersection that a stop cannot be made in safety') before entering the crosswalk; and on his red light, to stop before entering the crosswalk and not start until his light is green. In the traffic district in which the Main-West Eleventh intersection is located, 'a pedestrian shall not cross at any place except in a marked or unmarked roadway' except that at several intersections, including Main-West Eleventh, 'a pedestrian may cross within the intersection as authorized so to do by pedestrian 'Walk' signals and may cross * * * at any angle; * * *. A pedestrian crossing or starting across any such crosswalk on a green signal or pedestrian 'Walk' signal shall have the right of way over all vehicles * * * until such pedestrian has reached the opposite curb * * * and it shall be unlawful for the operator of any vehicle to fail to yield the right of way to any such pedestrian.'

Plaintiff testified that: About 8 a. m. on December 1, 1948, she stepped from the front of a northbound streetcar. It was a clear day and broad daylight. Standing in the north end of the zone and facing east, she saw the east signal's 'Don't Walk.' After the streetcar had moved north she turned around and stood in the zone, facing west, for 2 or 3 seconds. When she saw the west signal change to 'Walk,' she looked to her left (south-southwest) and saw no northbound vehicular traffic. She then looked to her right (north-northwest) and saw no vehicles in the intersection. The northbound streetcar had moved beyond her vision. She was wearing a hooded coat with the hood on over her head. She then walked due west along, or 'probably 6 inches or maybe a foot' south of, the crosswalk (the south boundary of which was not marked entirely across the street). She 'continued to look straight ahead' and 'was watching where I was walking.' She walked 'slowly' and 'at her normal gait, much slower than an ordinary man walks.' Other pedestrians were using the crosswalk and she 'was watching out for other people.' She did not hear the streetcar's approach or any streetcar signal. Had she had any warning before she got to the southbound track she could have stopped before she went on that track--she 'could have stopped instantly at the rate she was walking.' She was looking straight ahead and did not again look to her right until she was in the center of the southbound track when she saw the streetcar 5' or 6' away, coming at a speed which she estimated was 5-7 m.p.h. She 'tried to run [westward] out of its way as fast as I could' but was struck on her right side by the streetcar's right front corner.

Defendant argues that plaintiff's testimony that she did not see the streetcar until she reached the middle of the southbound track is 'contrary to known physical facts'; that even if she was looking straight ahead, her vision must have encompassed a distance at least 15' to her right. Hence, defendant contends, the verdict was against the weight of the evidence. There was no evidence as to this lateral vision matter and whether plaintiff saw the streetcar before she was in the southbound track was a jury question. But, apart from those facts, an assignment that the verdict is against the weight of the evidence is 'a matter to be decided solely by the trial court.' Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304, 306.

Plaintiff's primary negligence submission was the streetcar's entry into the crosswalk against a red light. Defendant contends that plaintiff was guilty of contributory negligence as a matter of law. In crossing Main on a 'Walk' light, plaintiff had a duty to exercise the same care for her own safety that a reasonably prudent person would exercise under the same or similar circumstances. Anno. 164 A.L.R. 8, 15, 36. And whether plaintiff was negligent was for the jury unless she clearly failed to exercise such care as would ordinarily be exercised by a reasonably careful person under all of the instant circumstances; and in determining that matter, the court must accept as true the evidence favorable to her and allow her the benefit of every reasonable inference permissible from all the evidence. Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64, 67.

Defendant contends that plaintiff was contributorily negligent as a matter of law in three ways, viz.: In failing to look for or see the 'clearly observable' approaching streetcar; in not walking 'within' the crosswalk; and in failing to keep a lookout for approaching vehicles. Defendant cites cases wherein it was held that, under the particular circumstances, failure to look and see what was plainly visible was contributory negligence as a matter of law. However, defendant's argument ignores the evidence corroboratory of plaintiff's statement that she saw no vehicles in the intersection when she looked northward--the evidence tending to show that the streetcar was not in the intersection when she looked. Plaintiff testified that she walked at her 'normal gait * * * much slower than the ordinary man walks.' Assume that the jury believed that her gait was 2 1/2 m. p. h. or 3.66' per second. (We have judicially noticed that the 'ordinary walking speed of the average man is 2 to 3 miles per hour, more nearly the latter.' McGowan v. Wells, 324 Mo. 652, 24 S.W.2d 633, 639). At that gait, it took plaintiff almost 5 seconds to reach the collision point, nearly 18' from where she started. If the streetcar's speed was 7 m. p. h. (10.3' per second), it was over 50' away when plaintiff started. And if plaintiff's gait was 2 m. p. h. (2.93' per second), as the jury might reasonably believe, it took plaintiff 6 seconds to reach the collision point and the streetcar was 53' or 62' (if moving at 6 or 7 m. p. h., respectively) away when plaintiff started. The jury could reasonably infer that the streetcar was not in the intersection, the north boundary of which is...