Scott v. Kansas City Public Service Co.

• Decision Date: 07 March 1938
• Docket Number: No. 19092.,19092.
• Parties: SCOTT v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

115 S.W.2d 518

SCOTT v. KANSAS CITY PUBLIC SERVICE CO.

No. 19092.

Kansas City Court of Appeals. Missouri.

March 7, 1938.

Rehearing Denied April 4, 1938.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

"Not to be published in State Reports."

Action by Mernie Scott against the Kansas City Public Service Company for injuries sustained when plaintiff's automobile collided with the rear end of defendant's bus which had stopped to take on a passenger. Judgment for plaintiff, for $1,500, and defendant appeals.

Affirmed.

Harding, Murphy & Tucker, of Kansas City, for appellant.

Edwards, Thomsen & Johnson, of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1500.00. Defendant has appealed.

The facts show that plaintiff was injured on November 25th, 1935, at about 10:15 p. m. when he drove his Ford car into the rear end of defendant's bus. The collision occurred on U. S. Highway No. 24 where it goes under Blue Ridge Road Boulevard viaduct near Kansas City. Highway No. 24 at the point in question extends in an easterly and westerly direction and the viaduct crosses it at right angles.

The main point relied upon by defendant is that the court erred in refusing to give its instruction in the nature of a demurrer to the evidence, for the reason that it is claimed that plaintiff was guilty of contributory negligence, as a matter of law. This contention will require the evidence to be stated in its most favorable light to plaintiff.

The evidence shows that Highway No. 24 at the place in question is paved. The pavement is divided into four lanes, two for eastbound and two for westbound traffic. As the highway approaches the viaduct from the east the pavement is 61 feet 5 inches in width. Under the viaduct it is 42 feet in width.

Defendant operated a bus passenger line over the highway to and from Kansas City. It had established a passenger loading zone underneath the viaduct for taking on and discharging passengers to and from westbound busses. At the loading zone it maintained a passenger stop sign a few feet north of the pavement. This sign was located on the west edge of the viaduct. The bus involved in the collision was about 40 feet long. It was equipped with air brakes and with various tail lights on its rear end, including two large stop signal lights located on each rear corner. Plaintiff was driving westwardly upon the extreme north or the outside lane for westbound traffic.

As the parties disagree as to the construction to be placed upon plaintiff's testimony, it is necessary to state it in some detail. Plaintiff testified that when he approached the viaduct from the east he did not notice that there was a bus coming behind him; that the bus passed him to his left going at a rate of speed of about 40 miles per hour, when he was about 125 feet from the viaduct. Plaintiff estimated the rate of speed of his car at about 25 miles per hour but that it might "vary five miles either way." This speed continued until the bus suddenly swerved in front of him to take on a passenger standing at the stop sign. It was then too late for him to stop before striking it. He testified that at the rate of speed he was going he could have stopped within 30 feet. Later he testified that the bus passed him when he was about 110 feet from the viaduct. He further testified that when the bus passed him he saw the lighted stop lights on the bus and he knew that the driver of the bus was applying his brakes and would stop.

The crucial point in the case is as to when plaintiff first knew that the bus was going to stop in front of his car. It will be remembered that both vehicles were traveling in the same direction, the bus going at a more rapid speed than plaintiff's car and, as the two vehicles were traveling side by side, it required some time and distance for the entire bus, or the rear end thereof, to pass in front of plaintiff, so that he could see the stop signals.

However, to return to plaintiff's evidence on this point, we find that he testified that the bus had its brakes on "as it went by me." "As the tail end was just by is when I said I seen the lights on that * * * as it was passing me."

"Q. Then you did see the tail lights coming from it, and that he had the brakes on, and was in the process of slowing down, stopping, when he passed you 125 feet east of the point where you ran into him — you knew that, didn't you? A. No.

"Q. Did you or did you not know that he had the brakes on when he passed you? A. As the bus cut in front of me.

"Q. Answer the question, and we will get to the other phase in a minute — Did you know that he had the brakes on when he passed you — that is what I want to know — from the signal light on the back end of the bus? A. I don't know — his lights was on, that was all I know.

"Q. You did know the stop-light was on the back end of the bus? A. Yes.

"Q. Did you know — also knew that at the time he passed you, didn't you? A. No.

"Q. What did you mean a few minutes ago when you said he had the brakes on when he passed you, because you saw the light? A. Let me explain.

"Q. (Interrupting) I want to get to this point — we will get the other detail — but this is important, is your statement true that when he passed you, you saw his stop-lights and signal on the back of the bus, and that he had his brakes on — is that statement that you made a few moments ago a true statement, and is it not a fact? A. As soon as the rear came into view so I could see it.

"Q. And that happened when he passed you? A. Yes, sir.

"Q. And he passed you about 125 feet as near as you can estimate without measuring, 125 feet east of that bridge? A. No — he didn't pass me 125 feet from that bridge?"

At this point plaintiff testified that the bus passed him when he was 110 feet from the viaduct.

"Q. When it was 110 feet from the bridge — but, giving you the benefit of another 10 feet — when it was 100 feet from the bridge, 10 feet past you, did you then know that he had his stop-light on on the back end of that bus? A. As the tail-end of the bus came into view I knew it.

"Q. Is my measurement fair to you — giving you an additional 10 feet — A. (Interrupting) Yes, sir.

"Q. Is 100 feet the distance that the bus traveled, with you knowing that he had the stop-light on, and showed by the light? A. Yes, sir, that is right. * * * I knew he was going to stop."

As to what occurred after the bus passed plaintiff's car, he testified that, when the bus passed in front of him, it stopped at the westerly edge of the viaduct and the rear end at the easterly edge; that it stopped diagonally with its rear end at the center line of the pavement and the front end at the northern edge, blocking both lanes for westbound traffic.

There is a wide difference between the parties concerning the proper construction to be placed on plaintiff's testimony as to where the bus started to cut in front of plaintiff's car. On direct examination, plaintiff testified on this point:

"He cut around on my left; and stayed in that left-hand lane of the road, going west, and as he cut around me, we were both right to the viaduct as he went past me, while I was just like this (indicating) — I can't say just exactly, but —

"Q. (Interrupting) Let's get it so the jury will know it — were you in the right-hand lane of the traffic — right-hand lane of the four slabs. A. Yes, sir.

"Q. That is the farthest one north? A. Yes, sir.

"Q. Now, and he passed, on your left? A. Yes, sir.

"Q. Now, state this — how far were you from the overhead highway, Blue Ridge Road, that goes over U. S. Highway Number 24 — how far were you from there when this bus passed you? A. Well, it was after we — it would be less than 125 feet, anyway, because he passed around me, say, 125 feet from the viaduct, as he cut around me, I found out afterwards that there is a —."

On cross-examination, he testified:

"Q. Now, when this bus was passing you back there, about 125 feet from the bridge, when it first started passing you, did it angle over to the right side, or cut right directly in front of you back there, when it first passed you? A. No, he stayed in the middle, and had the brakes on. I didn't know whether he was going to pull over or not.

"Q. Did he cut in very close to you? A. Well, I would not know — 10 feet.

"Q. Cut in, do you mean where he cut across in front of you it was about 10 feet from your car? A. Yes, sir. * * *

"Q. How close to the point which was 110 feet east of the bridge, by your approximation, was it that you saw the bus cutting over to the right side of the road — how many feet, approximately? A. That he was in front of me, or from where he stopped?

"Q. From the time he passed you, how far was it from that time to the time he started cutting across in front of you, to get over on the right lane to stop? A. I wouldn't know about that.

"Q. What would you estimate it at — I am trying to get the distance from the point where he passed you, to the point where he was getting over — did he get over within a range of 10 feet after he passed you? A. No, I don't think he did. * * *

"Q. Did he turn over to the right of you within 20 feet after he passed you? A. I could not say about that, because that is not the object — they were both moving at the same time, when he cut in front of me. When he was 10 feet, he started angling.

"Q. Then, it is your statement that, after he had passed you, and gotten approximately 10 feet ahead of you (A. Yes, sir), he started to angle over? A. Yes, sir.

"Q. And that point, where he started angling, was within how many feet of the, you say, of the bridge? A. He never did cut over before he stopped, he was right under the bridge, he was right under the bridge.

"Q. I know where you say he stopped — when he started angling, did he start angling back there in the neighborhood of 80 or 90 feet east of the...