Ross v. Hoffman

• Decision Date: 09 February 1925
• Docket Number: No. 15226.,15226.
• Citation: 269 S.W. 679
• Parties: ROSS v. HOFFMAN et al.
• Court: Missouri Court of Appeals

269 S.W. 679

ROSS v. HOFFMAN et al.

No. 15226.

Kansas City Court of Appeals. Missouri.

February 9, 1925.

Rehearing Denied February 28, 1925.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by W. A. Ross against Barnett L. and Sam Hoffman, doing business as Hoffman Bros. Investment Company. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Marcy K. Brown, Jr., of Kansas City, for appellant.

Spencer F. Harris, of Kansas City, for respondents.

TRIMBLE, P. J.

Shortly after midnight on the 26th of July, 1919, plaintiff was driving his automobile west along the north or right-hand side of Linwood boulevard in Kansas City, when his car collided with a mass of lumber piled in the street by defendants for use in the erection of a house on property adjacent thereto. He brought this suit for damages to his automobile, but at the close of plaintiff's case, the court being about to sustain a demurrer to the evidence, plaintiff took an involuntary nonsuit, with leave to move to set the same aside. This motion was in due time filed, but was overruled. Whereupon plaintiff appealed.

The petition, after stating the above facts, pleaded an ordinance of the city forbidding the placing or depositing on any boulevard, avenue, street, parkway, or park road, of "any building material whatsoever or any other article or things which shall obstruct or hinder the travel thereon, without a written permit from the board of park commissioners," etc., and a further section of said ordinance requiring every person having the use of any portion of such boulevard, avenue, street, parkway, or park road, for the purpose of erecting or repairing any building or for any purpose, to cause two "red lights to be placed in a conspicuous place, one at each end of such obstruction from dusk until sunrise in the morning of each day during the time such obstruction shall remain," etc.

The negligence charged was the violation of this last-named section of the ordinance in having the pile of lumber in the boulevard without placing a red light on each end thereof as required by said ordinance.

The answer was a general denial coupled with a plea of contributory negligence, in that "although Linwood boulevard was a well-lighted street and the said lights upon plaintiff's car would have and did disclose to the plaintiff the presence of said pile of material for more than a block away, and the plaintiff carelessly, and without keeping lookout to the head of his car, ran into said pile of material," etc.

The evidence in plaintiff's behalf amply tended to show the following facts: That about 12:30 a. m. of the above-mentioned day, plaintiff, alone in his open, touringstyle, Marmon automobile, was driving west on the north or right-hand side of Linwood boulevard and about 6, 8, or 10 feet out from the north curb; that he was going about 20 miles an hour; that it was dark; plaintiff did not recall whether the night was clear or cloudy, he did not think it was raining, and did not remember whether the streets were wet or not, but he did not think they were; that suddenly, when he was "right on it," possibly 15 or 20 feet away, he saw the pile of lumber in question, and tried both to stop and to swerve out and miss it, but was unable to do so; that the pile of lumber "practically took up the whole half of that street," he was "very sure it covered over a quarter of the street"; that the lumber was in a pile higher than the car, as much as 6 or 8 feet above the top of the car; that the pile was lying lengthwise of the street with the ends of the boards toward him; that a long 2x10 or 2x8 stuck out from the end of the pile, and, when the collision occurred, the end of this projecting timber crashed through the wind-shield to plaintiff's right and went on through the automobile, and stopped with the rear end of the timber resting on the seat beside him; that the car, after being thus impaled by this projecting timber, struck the pile of lumber and came to a standstill, the force of the blow being sufficient to cause the pile to topple over on and at least partly bury his car, which was demolished; that after plaintiff got out of his car, he examined the pile for lights or lanterns thereon, but none were there; that in coming down the street he did not see the pile in time; that he could not say how close in feet he was to the pile when he first saw it, but thought he was within 15 or 20 feet from it and struck it almost immediately thereafter; that he was looking straight ahead, but did not see the pile sooner.

On cross-examination, plaintiff said he had the lights on his car required by ordinance, that is, which could be both dimmed and bright, and he had the bright lights on at the time, the same being electric lights, but they were not blinding lights; that they could light up an object about 25 feet away; that while he had been over Linwood boulevard before he could not say what was the location of the street lights, but the boulevard lights were shining; that the pile of lumber was located about 60 or 70 feet east of Chestnut street toward which he was going, and that he did not know whether there was a street light on the corner or not, they were ordinary gas lights then; that no one was ahead of him with a car as he went along; that if the pile of lumber had been lighted, he could have seen it from the time he turned into Linwood from Benton boulevard; that he came down directly in line with the lumber, his lights shining directly towards it; that the best he could judge he was either 15 or 20 feet away when he first saw the pile; that this distance was approximately correct; that when he saw the pile he put on both foot and hand brakes, and tried to swerve but hit the end of the pile at an angle near the edge with the righthand side of his car.

Plaintiff further testified on cross-examination that he had been driving an automobile since 1908 and was accustomed to a Marmon car; that in addition to the foot brake, it had a powerful hand brake; and that "if your brakes were absolutely all right I think you could stop it in 25 or 30 feet"; that his brakes were all right except for ordinary wear and tear, but he did not know he could stop in 25 or 30 feet, "evidently I couldn't"; that in going 20...