Smart v. Raymond

• Decision Date: 20 May 1940
• Docket Number: No. 19636.,19636.
• Citation: 142 S.W.2d 100
• Parties: SMART v. RAYMOND et al.
• Court: Missouri Court of Appeals

142 S.W.2d 100

SMART v. RAYMOND et al.

No. 19636.

Kansas City Court of Appeals. Missouri.

May 20, 1940.

Rehearing Denied July 1, 1940.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

Action by Eloys Smart against Robert Scott Raymond and Robert Scott Raymond, Jr., for injuries sustained by plaintiff when struck by defendants' truck. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Cooper, Neel & Sutherland, of Kansas City, for appellants.

J. Francis O'Sullivan, O. H. Stevens, John M. P. Miller, and Maurice J. O'Sullivan, all 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 $5,000, and defendants have appealed.

The facts show that plaintiff was injured about 7:30 a. m. of the morning of February 28, 1938, by being struck by defendants' truck. The truck was being driven northwardly on Main Street, a short distance north of 39th Street (an east and west thoroughfare) in Kansas City. Main Street at the point in controversy is 60 feet wide from curb to curb, with two street car tracks located in the center thereof. There is a safety zone provided for passengers to alight from southbound street cars starting 29 feet from the north property line of 39th Street and approximately 36 feet from the north curb line of that street. The safety zone, itself, is approximately 50 feet in length north and south and 6 feet in width. There is a crosswalk crossing Main Street at the north side of the intersection. The evidence is indefinite as to the location of this walk in relation to the safety zone but there is evidence that it is located 10 feet or more south of the safety zone. Traffic at the intersection of 39th & Main Streets is controlled by traffic control signals and the intersection is a busy one.

Plaintiff was on her way to work and was in the act of transferring from a southbound street car on Main Street to a westbound bus line which is operated along 39th Street. The westbound busses stop at the northeast corner of 39th & Main Streets. She intended to take one of these busses. Defendants' evidence was to the effect that there was a bus standing there at the time but plaintiff stated that she was in no hurry.

The truck involved in the casualty was a Ford, having a cab with a bed or furniture rack to the rear. The bed was 7 feet long and 6 feet wide. The rack was 4 feet 3 inches in height. There was a rear-vision mirror extending out from the lefthand or left side of the truck. It was 4 feet 3 inches from the ground to the center of the mirror. The mirror was attached to the upper hinges of the door on the driver's side of the cab and extended out about 8½ inches from the side of the cab. The mirror did not extend out beyond the lines made by the fenders or the running board.

The street car stopped with its rear end near the north end of the safety zone. Plaintiff alighted from the rear door and started around the rear of the street car to cross the street to the east side of Main Street. She stopped on the car tracks and bent her head and body forward around the car to look for the possible approach of a vehicle. A flash of red passed before her eyes and that is all she remembered. Other evidence shows that the mirror on the truck struck her in the forehead. She was rendered unconscious and taken to a hospital.

Defendants' evidence shows that three persons, a father, son and daughter, were riding to their work and seated in the cab of the truck. As they approached 39th Street from the south the truck was proceeding on the northbound street car track. The traffic lights at 30th & Main Streets were red and, consequently, set against north and south traffic, so they stopped for the light to change. When the light changed to green for north and south traffic, they proceeded on north, driving on the northbound street car tracks. The street car in question came to a stop at the safety zone about the time defendants started across 39th Street. At the time the truck reached the north end of the street car, and while still traveling on the northbound street car tracks, the driver caught a flash of something and felt a slight impact. He immediately applied his brakes and swerved to the right, bringing the truck to a stop.

There was other testimony on defendants' part that plaintiff ran out and into the truck "like a ton of brick"; that she came out from behind the street car and ran into the truck without stopping or hesitating; that the truck was traveling between 15 and 25 miles per hour at the time of the collision. It is undisputed that those in charge of it gave no warning signal as it passed the street car.

As one of the grounds of negligence plaintiff pleads an ordinance of Kansas City, providing: "In driving upon the right half of a roadway the driver shall drive as closely as practicable to the righthand edge or curb of the roadway except when overtaking or passing another vehicle or when placing a vehicle in a position to make a left turn."

The answer pleads contributory negligence, in that, plaintiff at the time she was injured, was violating an ordinance of Kansas City reading as follows:

"Section 16. Pedestrians' Right of Way. * * *

"(c) Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the roadway, provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.

"Section 17. Pedestrians' Rights and Duties at Controlled Intersections. On streets where traffic at intersections is controlled by traffic control signals, or by police officers, pedestrians shall not cross a roadway against a red signal and shall not cross at any place except in a marked or unmarked crosswalk. A pedestrian crossing or starting across in any such crosswalk on a green signal shall have the right of way over all vehicles, including those making turns, until such pedestrian has reached the opposite curb or a safety zone, and it shall be unlawful for the operator of any vehicle to fail to yield the right of way to any such pedestrian."

Defendants insist that the court erred in refusing to give their instruction "J" based upon the ordinance pleaded in the answer, and which instruction sought to tell the jury that if plaintiff started to cross Main Street "at a place outside of the regular crosswalk for pedestrians, if so, and at a time when the traffic light at the intersection of 39th and Main Streets were red for east and west traffic and green for north and south traffic, if you so find; and if you further find that plaintiff walked out from behind said street car and into the side of defendants' truck, then you are instructed that plaintiff was guilty of negligence, and if you so find, if you further find that such negligence contributed to cause said accident in question, then the plaintiff is not entitled to recover," even though the driver of the truck was guilty of negligence.

We think there was no error in refusing this instruction because that part of the ordinance relied upon has no application under the facts in this case. Section 17 applies to pedestrians crossing at controlled intersections. Plaintiff was not crossing at or near the intersection or the crosswalk at 39th & Main Streets. We have examined the cases cited by defendants and find them not in point. In Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866, the ordinance provided that pedestrians should cross streets "only at street intersections and places designated at cross walks". In Fennell v. Yellow Cab Co., 138 Wash. 198, 244 P. 253, plaintiff was crossing the intersection diagonally in the face of an ordinance providing "on paved streets and intersections pedestrians shall not cross such a street diagonally". In Hopkins v. Galland Merc. Co., 218 Cal. 130, 21 P.2d 553, the ordinance provided that no pedestrian should cross the roadway other than by crosswalk. In Benison v. Dembinsky, 241 Ill.App. 530, the ordinance provided that pedestrians should keep off roadway, except when crossing at street intersections, or in getting in or out of street cars or vehicles, and should cross roadways at right angles and on the crosswalk.

The other cases cited by defendant involve similar ordinances not at all like the one involved in the case at bar.

By the common law pedestrians are entitled to the equal use of streets and roads and all parts thereof. Reynolds v. Grain Belt Mills, 229 Mo.App. 380, 78 S.W.2d 124; Moffatt v. Link, 207 Mo.App. 654, 229 S.W. 836 and the ordinance of Kansas City does not attempt to abrogate that right but merely to regulate it. Section (c) of the ordinance recognizes such right to pedestrians but limits it as related to crossing the street other than at a crosswalk. This plainly recognizes the right of pedestrians to cross the street away from controlled intersections without being governed by the regulations relating to such intersections.

However, it is claimed that the instruction "correctly declares the law in telling the jury that if plaintiff walked behind the street car into the side of defendants' truck, she was guilty of negligence." Defendants' evidence supports such a defense but the instruction does not purport to submit it, but is solely upon the matter of alleged violation by plaintiff of the traffic ordinance. It is true that it contains the language "if you further find that plaintiff walked out from behind the street car into the side of defendants' truck", but it would appear that this clause was inserted in the instruction for the purpose of submitting the condition upon which the alleged violation of the ordinance by plaintiff would apply. In other words, proximate cause. If the defendants wished an instruction on the point they should have asked one covering it so that it would be so...