Schinogle v. Baughman

• Decision Date: 07 March 1921
• Docket Number: No. 13879.,13879.
• Citation: 228 S.W. 897
• Parties: SCHINOGLE v. BAUGHMAN et al.
• Court: Missouri Court of Appeals

228 S.W. 897

SCHINOGLE v. BAUGHMAN et al.

No. 13879.

Kansas City Court of Appeals, Missouri.

March 7, 1921.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Gus B. Schinogle against Booth Baughman and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Casey & Wright and Walter W. Calvin, all of Kansas City, for appellants.

McCanles, Kennard & Trusty and S. L. Trusty, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff claim's that while walking across a street he was knocked down and injured by defendant Baughman's car, driven by the latter's agent and codefendant, Stengel. He brought this suit for damages. Defendants claim that plaintiff, without looking where he was going or watching out for his own safety, walked into the side of their automobile and was hurt by reason of his own negligence contributory thereto. There was a verdict and judgment for plaintiff in the sum of $2,500, from which defendants have appealed.

The injury occurred at what is known as "the junction" in Kansas City, Mo. Ninth street runs east and west across Main street, which runs north and south, and Delaware street comes from the northwest and runs southeast into Main street at its junction with Ninth, so that Main street at and for a short distance south of Ninth is much wider than Main street north of Ninth. A street car track runs north along the east side of Main across Ninth, and Woodland cars thereon run on north to Fourth street, where they make a loop and come back south on Delaware to the junction, where they cross Ninth into Main and go on south up the west side of Main street. Other cars coming north on the east side of Main turn west on Ninth, and possibly certain cars on the other two tracks do the same. Consequently the wide open space on the streets at this "junction" is a place crossed by various street cars, is traversed by many vehicles and pedestrians in different directions, and is a much-traveled place.

Plaintiff, starting home from his work, walked west to Twelfth and Main to board a Woodland car going south thereon to his home. By the time the cars reached Twelfth however, they were so crowded plaintiff could not get on, so he walked north to the southwest corner of Ninth and Main, or to the "junction" aforesaid.

He stood a moment on this corner, and then concluded that the only way for him to be able to secure a seat on the car would be to cross over Main street to the east side thereof and board a Woodland car going north and ride around the loop and then come back south on to Main street. After standing a moment at the aforesaid corner, he looked up and down the streets (including Delaware street) in both directions and saw no automobiles approaching and stepped off the curb. Just as he stepped off to go across to the east side of Main street, a street car going west on Ninth stopped in front of him, the street car being just a little east of the mouth of Delaware, so it did not shut off the view of Delaware or passageway from Delaware south into Main street.

According to plaintiff's evidence he had gotten about four steps into the street on his way east or "angling" northeast across Main street (and was about 8 or 10 feet out from the curb on the west side of Main), when he saw defendants' automobile coming south from out of Delaware traveling at about 20 or 25 miles per hour. It was 30 feet away when he first saw it coming across the track in front of the standing street car, and, as he was then already out in the street a sufficient distance for it to pass to the west of him, he hurried up a little, but it came right on without swerving or turning and "was right on to me before I knew it," and when it was 5 or 6 feet away he saw it was going to strike him, and he attempted to jump out of the way, but was not quick enough. The left front fender on the east side struck him in the back, knocking him down and injuring hint He says that after the automobile struck him it went 25 or 30 feet before it stopped; that no warning was given, or none that he heard; that it was crossing the street car track on Ninth 30 feet away when he first saw it. "It didn't take but a second to run to where it was; it was coming pretty fast." He was about 12 feet from the curbing when hit. He also said he did not realize his danger until he saw the automobile close upon him, only 2 or 3 feet away, and then vainly tried to jump out of the way.

Under the foregoing facts, supported by plaintiff's testimony, we cannot say the plaintiff was guilty of contributory negligence as a matter of law. Appellants' contention in this regard goes upon the theory that plaintiff walked into the street without looking, then observed the car for the first time only a very few feet away, but manifestly the record shows that this was when plaintiff first realized he was in danger. Besides, the plea of contributory negligence was specific, namely, that plaintiff, in walking out into the street and into and against defendants' car without observing where he was going, directly contributed to his injury. Heriford v. Kansas City Rys. Co., 220 S. W. 899. The question of plaintiff's contributory negligence was for the jury. Ziegler v. United Rys. Co., 220 S. W. 1016; Harrington v. Dunham., 273 Mo. 414, 202 S. W. 1066.

It is urged also that the evidence fails to show any negligence on the part of defendants, but manifestly this, too, is untenable. The place in question was a crossing much used by the street cars, vehicles, and pedestrians going in various directions; and plaintiff's evidence tends to show that defendants' automobile was driven at a high and rapid rate of speed over this place. We cannot say plaintiff's evidence as to the high rate of speed was wholly devoid of probative value. It is true plaintiff says he found out after he was hit that the automobile was going pretty fast, but he also shows that his judgment as to speed was based on the quickness with which the automobile first appeared on the scene and then how quickly after that it was upon him, and it was after he was hit that he realized how fast the automobile was going. We cannot say his evidence is wholly devoid of probative force. Besides, the demurrer, which appears to have been oral, was general in its terms, and after it was overruled the defendants asked and received instructions on the issues involved, and is therefore estopped to say there was no issue of negligence under any of the specifications in the petition on which the plaintiff could go to the jury. Lorrance v. Pryor, 210 S. W. 430, 432.

The negligence pleaded in the petition was the violation of a section of the city ordinance requiring vehicles to "be driven in a careful manner and with due regard for the safety and convenience of pedestrians and all other vehicles"; that a certain other section of a city ordinance prescribed that the rate of speed should not exceed 10 miles at street intersections, etc., and speed in excess of the prescribed rates was presumptive evidence of negligence, and that said automobile was negligently operated in excess of that speed; that the defendant in charge of and operating said automobile negligently failed to give any warning and negligently failed to keep a reasonable lookout, in violation of a certain ordinance providing for warning when necessary; that defendants drove the car in a negligent manner without properly controlling, guiding, or checking the same and at a dangerous rate of speed; and that defendants were also negligent "in that plaintiff was unconscious of any danger of defendant's automobile colliding with him until the same was so close upon him that he was in helpless peril, all of which said Stengel knew, or by the exercise of due care might have known, in time to have prevented the accident and injuries herein complained of, by stopping said automobile, or slackening the speed thereof, or swerving or turning to one side or the other, or by giving reasonably sufficient warning of the approach of said automobile, but, notwithstanding such facts, defendant Stengel nevertheless negligently failed to do any of said things, and negligently failed to keep a vigilant watch for plaintiff or other persons who were using the street and intersection at said time."

It is claimed that plaintiff's instruction 1, which submitted the issue of whether defendants negligently failed to maintain a reasonably sufficient lookout, was without evidence to support it, but such contention cannot be upheld; for there is evidence from which the jury could reasonably draw the inference that the operator of the car did not keep a reasonably sufficient lookout or he would have turned aside and gone behind plaintiff instead of striking him. The plaintiff had almost cleared the path of the automobile when he was struck. It did not slow down nor turn to one side, and plaintiff says...