Rooney v. Yellow Cab & Baggage Co.

• Decision Date: 09 February 1925
• Docket Number: No. 15276.,15276.
• Citation: 269 S.W. 669
• Court: Missouri Court of Appeals
• Parties: ROONEY v. YELLOW CAB & BAGGAGE

269 S.W. 669

ROONEY v. YELLOW CAB & BAGGAGE

No. 15276.

Kansas City Court of Appeals. Missouri.

February 9, 1925.

Rehearing Denied February 28, 1925.

Appeal from Circuit Court, Jackson County O. A. Lucas, Judge.

"Not to be officially published."

Action by Marie Rooney against the Yellow Cab & Baggage Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hogsett & Boyle, of Kansas City, for appellant.

Guy M. Cowgill, of Kansas City, for respondent.

BLAND,

This is an action for damages to an automobile, resulting from a collision. Plaintiff recovered a verdict and judgment in the sum of $1,500, and defendant has appealed.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given for the reason that the driver of plaintiff's automobile was guilty of contributory negligence as a matter of law. It seems to be conceded that the driver of plaintiff's automobile was her agent and that plaintiff is responsible for his negligence, if any.

The facts stated in their most favorable light to plaintiff show that between 12 and 1 a. m. of November 15, 1918, plaintiff's car was being driven by one Ferris south on Holmes street, in Kansas City, Mo., and across Twenty-Fifth street, a street intersecting Holmes street at right angles, when it was run into by a taxicab being driven west on Holmes street by a servant of the defendant. Holmes street runs north and south, and Twenty-Fifth street east and west; the former is 40 feet in width from curb to curb, and the latter 26 feet. There is a doubletrack street car line on Holmes and a singletrack line on Twenty-Fifth street. The car tracks on Twenty-Fifth street are on the south side thereof; the south rail being about 5 feet. 8 inches, from the south curb of Twenty-Fifth street. The street car tracks are about 5 feet wide, making the north rail about 10 feet, 8 inches, or approximately 11 feet, from the south curb of Twenty-Fifth street.

Ferris was driving astride the most western rail of the four rails on Holmes street. He approached and entered Holmes street at the rate of 8 miles an hour. The taxicab had a small light on each side, near the top. Ferris could not see the approaching taxicab until he arrived at the curb of Twenty-Fifth street, at which time he saw it coming at the rate of 40 to 45 miles an hour, 40 feet away. Ferris testified that the taxicab was on the car tracks on Twenty-Fifth street, and that it did not change its course or slacken its speed until it struck the side of the automobile that he was driving. He testified that the taxicab at no time sounded any warning of its approach, but that he blew his horn when his car approached Twenty-Fifth street.

The contention that Ferris was guilty of contributory negligence as a matter of law is based upon the claim that he had ample opportunity to stop his car prior to the collision so that the taxicab would have passed in front of him. In reference to this matter Ferris testified that at the time he saw the taxicab approaching, the front end of his car was 41/a feet south of the curb of

Twenty-Fifth street; that his car was 15 feet in length; that at the rate of speed at which he was going he could have stopped his car in 4 or 5 feet. Defendant argues that as the north rail of the Twenty-Fifth street car line was 11 feet from the south curb of that street and as the front of Ferris' automobile was 41/2 feet from the north curb at the time he saw the approaching taxicab, and as Twenty-Fifth street was 26 feet in width, he had a distance of 101/2 or 11 feet in which to stop.

But, of course, in considering a demurrer to the evidence we must look to all of the testimony, that introduced on the part of defendant as well as that on the part of plaintiff. The driver of the taxicab stated that he was driving near the center of Twenty-Fifth street and north of the car tracks. If he was driving in the center of the street, he was at least 13 feet south of the north curb of Twenty-Fifth street. If he was driving north of the car tracks, the south side of the taxicab was at least 11 feet from the south curb. There is no evidence as to the width of the taxicab, but assuming that the wheels of the taxicab were as wide as the tracks, or 5 feet, the north wheels of the taxicab would be 16 feet north of the south curb, or 10 feet south of the north curb; but this does not allow any distance for the overhang of the fenders and body of the car over the wheels. As the front end of Ferris' car was 41/2 feet from the north curb at the time he saw the taxicab, he had only approximately 5 feet, or less, in which to stop. There is a serious question as to whether if Ferris had used the very best judgment that could be expected from a cool and collected driver with plenty of time to decide upon what to do, he could have avoided the collision had he attempted to stop. He testified that he attempted to increase the speed of his car in the hope of getting out of the path of the on-coming taxicab, but that his motor did not respond. It was defendant's negligence that put Ferris in a position of imminent peril, and we cannot adjudge him guilty of contributory negligence if he did not use the very best judgment under the circumstances. His conduct was clearly a matter for the attention of the jury. Kleiber v. Ry. Co., 107 Mo. 240, 17 S. W. 946, 14 L. R. A. 613; Bischoff v. By. Co., 121 Mo. 216, 225, 25 S. W. 908. The case of Hammond v. Dry Goods Co. (Mo. Sup.) 240 S. W. 170, cited by defendant, is entirely unlike the case at bar.

Complaint is made of plaintiff's instruction No. 1, which told the jury that—

If they found and believed that plaintiff's automobile "`) was in and passing said intersection before defendant's taxicab reached there, if you so find, and that there was danger of a collision if the taxicab proceeded into said intersection, and that said danger, if any, would have been apparent to a reasonably prudent person in the position of Chitwo(o2d69, the driver of defendant's taxicab, and that said Chitwood ran said taxicab into said intersection, if you so find, and that thereby defendant's driver caused and permitted said taxicab to collide with the Haynes car of plaintiff, if you so find it did so collide, then such conduct constituted negligence on the part of Chitwood, and if you find from the evidence that as a direct result of such negligence, if any, plaintill s automobile was damaged, then your verdict should be in her favor," providing that the driver of plaintiff's car was in the exercise of ordinary care.

Plaintiff and defendant pleaded certain ordinances of Kansas City in hicc verba providing that automobiles should be operated in the city "in a careful and prudent manner and at a rate of speed that will not endanger the property of another or the life or limb of any person or persons, provided that driving in excess of the following rates of speed for a distance of more than two hundred feet shall be presumptive evidence of driving at a rate of speed which is not careful and prudent." Then follows a given rate of speed on various streets and boulevards and places. The ordinance then continues as follows:

"Provided, however, that in passing any street intersection, crossing or crosswalk within the limits of Kansas City, Missouri, the rate of speed for driving shall not exceed ten (10) miles per hour when any person or vehicle is upon said intersection, crossing or crosswalk with whom or with which there is or may be danger of collision.

"Sec. 39. Right of Way.—Whenever vehicles approaching each other on different streets shall reach the intersection of such streets at the same time, the vehicle proceeding on the street running north and south shall have the right of way unless such east and west street is a boulevard, or a street on which street car tracks are located, in which event the vehicle proceeding on the boulevard or street on which said street car tracks are located shall have the right of way; but every such vehicle shall be kept under control so as to prevent danger of collision."

In connectioh with this point it is contended that...