Spencer v. Kansas City Public Service Co.

• Decision Date: 05 May 1952
• Docket Number: No. 21695,21695
• Citation: 250 S.W.2d 187
• Parties: SPENCER v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 187

250 S.W.2d 187

SPENCER v. KANSAS CITY PUBLIC SERVICE CO.

No. 21695.

Kansas City Court of Appeals, Missouri.

May 5, 1952.

Charles L. Carr, Hale Houts, J. D. James, Hogsett, Trippe, Depping, Houts & James, Kansas City, for appellant.

James Heron Coonce, Kansas City, for respondent.

SPERRY, Commissioner.

This is a suit by a pedestrian for personal injuries sustained by him when struck by a streetcar operated by Kansas City Public Service Company, hereafter referred to as defendant, and by an automobile operated by a Mr. Salsbury. From a verdict and judgment for plaintiff against defendant, in the sum of $5,000, Kansas City Public Service Company appeals. Salsbury was discharged.

The casualty occurred at or near the intersection of 33rd and Troost, in Kansas City. Troost is a north-south street, 57 feet wide, and defendant maintains two sets of tracks in the center of the street, one for the northbound and the other for southbound traffic. Plaintiff was crossing Troost, from west to east, and had stopped at a point some 15 inches east of the east rail of the southbound car tracks when he was struck. The streetcar was proceeding southward at a speed variously estimated at from 4 to 15 miles per hour, and Salsbury's automobile was proceeding northward, along the northbound track, at a speed of 20 to 25 miles per hour. The distance between the 2 sets of tracks was 5 feet.

Plaintiff was standing in the pedestrian lane, looking toward the east and south, when he was struck by the overhang of the streetcar and propelled southeastward against the left rear fender of the automobile, thence southward to a point in the street between the 2 sets of car tracks, where he was found sitting, or lying on the pavement.

Plaintiff testified to the effect that he lived south of 33rd Street, in about the middle of the block, on the east side of Troost; that he had gone to the grocery store, located at the southwest corner of the intersection of 33rd and Troost; that he had purchased some groceries, which he carried in a sack, and started to cross Troost, going to his home, walking in the pedestrian lane on the south side of 33rd; that, before entering the intersection, he looked to the north and saw no streetcar, but saw automobiles coming; that he looked to the south and saw some automobiles approaching, the nearest being from 100 to 150 feet south; that he did not look to the north again, but walked to a point some 15 inches east of the east rail of the southbound car track and stopped; that he was watching the approach of the nearest automobile coming from the south (the Salsbury car); that while so standing, he heard the 'swish' of a streetcar; that he turned his head and saw the streetcar; that he was struck in the back by the left front of the streetcar and hurled through the air against the left rear fender of the Salsbury car, the front of which was then slightly south of the crosswalk; that he was propelled further southward; that he came to rest from 30 to 40 feet south of the point where he was struck, and some 10 feet north of a launderette; that the sack of groceries was thrown still further south; that he was standing in the pedestrian lane when he was struck; that he heard no warning signallong the approach of the streetcar, or of the automobile; that when he stopped in the street the Salsbury car was about 75 feet south of him, traveling at a speed of 20 to 25 miles per hour, on the rails of the northbound track.

Plaintiff's main witness, Mrs. Strawn, lived at 3328 Troost, which was on the east side of the street. She testified to the effect that she worked, at that time, 3 doors north of 33rd, on the east side of Troost; that, as she walked toward her home, at lunch time, she observed plaintiff leave the grocery store; that she turned around (toward the north and west) to look at the traffic; that, just as she stepped off the curbing to cross 33rd, going south on the east side of Troost, she saw plaintiff step into the pedestrian traffic lane on the south side of 33rd, going eastward across Troost; that, when she reached a point 3 or 4 steps from the south curb of 33rd, plaintiff had stopped near the center of Troost; that she heard a streetcar approaching and saw it when it was about the length of a streetcar from plaintiff; that it had not then entered the intersection; that she thought it would strike him but was unable to do anything to avert the event; that when plaintiff stopped in the street the Salsbury car was proceeding northward and was beyond, or about opposite, a beer tavern, some 3 doors south of 33rd; that the streetcar did not slow down, nor was any warning given; that plaintiff was standing in the pedestrian lane when he was struck by the streetcar, some feet back of its front (the overhang at this point protrudes further out than the rounded front part of the streetcar); that the streetcar struck and knocked him into the rear fender of the automobile, and thence southward (but that he did not again strike the streetcar) to a point north of the launderette; that groceries were scattered southward from the pedestrian lane, a long distance, a loaf of bread being south of the launderette.

It was shown that the distance from the launderette to the south curb of 33rd was 66 feet; that 33rd was 36 feet wide; and that there was a streetcar 'Stop' sign some 48 feet north of the north curb line of 33rd.

Mr. Salsbury's testimony, as given at the trial, varies considerably from that which he gave in police court. On direct examination he testified to the effect that, when he first saw the streetcar, it was north of 33rd; that, when he first saw plaintiff, he was standing in the street, 100 feet south of 33rd. He testified in police court that the streetcar was 200 feet north of witness when he first saw it. On cross-examination, in this trial, he stated that, as he then remembered, the streetcar was 30 to 35 feet from plaintiff when he first saw it. This testimony is especially significant in view of the undisputed fact that 33rd Street is 36 feet wide, so that, if he first saw the streetcar when it was north of 33rd and 30 to 35 feet north of plaintiff, then plaintiff could not then have been 100 feet, or any other distance, south of the pedestrian lane. The witness also admitted that he testified in police court that plaintiff was standing, looking toward his car and not toward the streetcar. He stated that defendant's operator was looking toward the west as the streetcar bore down on plaintiff; that the streetcar struck plaintiff and threw him southward against the fender of Salsbury's car, thence southward onto the street.

Mr. Lindsey, called by Salsbury, testified to the effect that he was sitting in his car, which was stopped, several cars behind the Salsbury car, when he saw the streetcar; that it was stopped, north of 33rd; that he did not, at that time, see plaintiff; that when he first saw plaintiff he was standing in the street some distance north of the launderette, but about 100 feet south of 33rd; that the streetcar was then approaching plaintiff, it then being some 8 feet north of him; that plaintiff was looking to the east and defendant's operator was looking to the west; that witness' eyes traveled from one to the other as the streetcar approached plaintiff, and that the operator never turned his head in plaintiff's direction; that he thought that plaintiff would be struck; that plaintiff was hurled southward from 5 to 15 feet after the collision, finally coming to rest on the pavement, west of the launderette.

Mr. Laughlin, defendant's operator, testified to the effect that he made a stop north of 33rd; that he first saw plaintiff when he came out from between some parked automobiles, at a point about 100 feet south of 33rd; that he observed him until he stopped east of the east rail of the track upon which his car was traveling; that plaintiff looked toward the streetcar; that the streetcar was proceeding at a speed of about 4 miles per hour; that witness was, at all times, aware of plaintiff's location and alert to his possible danger; that he had the streetcar under control; and that there was sufficient space for it to pass safely. There were many discrepancies in testimony given by him at a police court hearing and that given at this trial.

Mrs. McIlrath, a passenger on the streetcar, was seated on the left side near the point of impact. She stated that when she first saw plaintiff he was standing in the street, about 60 feet south of 33rd, looking east; that after the front of the car passed him he put out his hand to the streetcar and was propelled around and out of her sight. She did not remember if the streetcar stopped at 33rd Street.

Mr. Thomas, a policeman, stated that he found a sack of broken eggs 89 feet south of the crosswalk.

Defendant contends...