Smiley v. Kenney

• Decision Date: 07 February 1921
• Docket Number: No. 13843.,13843.
• Citation: 228 S.W. 857
• Parties: SMILEY v. KENNEY.
• Court: Missouri Court of Appeals

228 S.W. 857

SMILEY v. KENNEY.

No. 13843.

Kansas City Court of Appeals. Missouri.

February 7, 1921.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

"Not to be officially published."

Action by L. R. Smiley against George T. Kenney, From judgment for plaintiff, defendant appeals. Reversed and remanded.

Clarence Wofford, Bert S. Kimbrell, and Walter W. Calvin, all of Kansas City, for appellant.

E. E. Ball and Chas. N. Sadler, both of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, while riding a motorcycle going east on Sixteenth street, met and collided with defendant's automobile going west thereon, the collision occurring at some point on the west edge of the intersection of Sixteenth street and Lydia avenue in Kansas City, the last-named street running north and south. This suit was brought to recover damages arising from the injury sustained; and a verdict and judgment for $5,000 were obtained, from which the defendant has appealed.

The petition charged that—

Defendant "negligently and carelessly caused and permitted said automobile to run against and collide with the motorcycle upon which plaintiff was riding; * * * that defendant was negligent in this, that he saw, or by the exercise of ordinary care could have seen, plaintiff in time, by the exercise of ordinary care, to_ have avoided striking the motorcycle upon which he was riding and negligently failed to do so."

It is somewhat difficult to understand what the petition means, and whether the above charge constitutes an allegation of general negligence or whether it consists of a general allegation followed by a specific charge of negligence in reference to seeing or not seeing plaintiff. Of course, if it is the latter, then plaintiff's case must rest upon the specific charge. McManamee v. Missouri, etc., R. Co., 135 Mo. 440, 447, 37 S. W. 119; Clark v. General Motorcar Co., 177 Mo. App. 623, 628, 160 S. W. 576; Pointer v. Mountain Ry., etc., Co., 269 Mo. 104, 115, 189 S. W. 805, L. R. A. 1917B, 1091. It would seem that the petition really contains a double-barreled charge, to wit, that the defendant saw plaintiff in time to have avoided striking him, but negligently caused and permitted his automobile to collide with plaintiff, or that he negligently failed to see him in time and struck him. Clearly, this last is specific, whatever may be said of the other, and the failure to see plaintiff is the negligence there charged. But, in the other charge, the fact that the defendant saw plaintiff is also necessary to the negligence alleged therein, as the petition says that is what made the collision negligent on the part of defendant.

Plaintiff, as stated, was on his motorcycle going east on Sixteenth street. He was traveling, so he says, about 10 or 15 miles per hour and was on the south side of the street. On Sixteenth street, standing slightly out from the curb and near the southwest corner of Sixteenth and Lydia, was a meat wagon facing east. The line of plaintiff's course was behind this wagon, and he continued behind it in coming up to it. As he reached the wagon he turned out to the north and around to the side of the wagon in order to pass it. His testimony shows that when he thus turned out he saw the automobile something like 8 or 10 feet away, and "the automobile was so close onto me when observed it that I really had no chance to do anything." Plaintiff says the automobile was coming at a rapid rate of speed, so that, if that was the time when each saw or should have seen the other, then there was no appreciable time between that and the collision, and no time for either plaintiff or defendant to avoid it. It is true plaintiff says that, at a point much further back from the intersection, he saw the automobile on the street, and that, at that time, there was such a difference between the lines of travel of the two vehicles that there was no danger of their colliding, even if he did turn out to pass the wagon. But there is no evidence that defendant saw plaintiff that far back up the street, or that he should have seen him then. Indeed, as plaintiff's line of travel was concededly behind the large meat wagon, it does not appear that defendant ought to have seen him then; and defendant's evidence, as well as that of the man who rode with him, is that they were looking straight ahead on Sixteenth street and did not see plaintiff until an instant before the collision. Besides, prior to their looking straight ahead, they had to observe and slow up for a coal wagon coming south on Lydia, hence they would not be to blame at that time for not seeing pla...