Stanley v. Helm
| Decision Date | 10 May 1920 |
| Citation | 223 S.W. 125,204 Mo.App. 159 |
| Parties | MARGARET STANLEY, Appellant, v. ANNA M. HELM, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Daniel E. Bird, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Clif Langsdale for appellant.
A. L Berger and Morrison, Nugent & Wylder for respondent.
At the close of plaintiff's case the trial court sustained a demurrer to the evidence and directed a verdict for defendant, and from the judgment rendered thereon, the plaintiff has appealed.
The petition, after alleging that she stepped off the sidewalk at the southwest corner of 15th street and Grand Avenue and proceeded across Grand Avenue to the southwest corner of said streets, set up that--
"after the plaintiff had stepped off of said sidewalk into said street, as aforesaid, and while she was between said sidewalk and the said south bound street car tracks, the defendant's said agent and chauffeur in charge of said automobile who had been driving said automobile from the east across said intersection of said streets, carelessly and negligently, suddenly and without warning, when said automobile was only a short distance away from plaintiff turned said automobile in a southerly direction toward plaintiff; that at said time plaintiff was directly in the path of said automobile and was about to be struck thereby and in her effort to get out of the path of said automobile and keep from being struck by the same, stumbled and fell, and was injured," etc. For a further assignment of negligence the petition charged that at the time--
"The said chauffeur carelessly and negligently, suddenly and without warning, turned said car in a southerly direction toward plaintiff as aforesaid, said car was traveling at from ten to fifteen miles an hour, and that plaintiff, who was at said time directly in the path of said automobile, believed that she was about to be struck by said automobile and injured, and that in her effort to get out of the path of said automobile, she stumbled and fell, and was injured," etc.
The evidence in plaintiff's behalf tends to prove the following facts:
Plaintiff, a large, fleshy and heavy woman, accompanied by her husband and an adopted son about 13 years of age, was down town in Kansas City on the afternoon of September 27, 1917, viewing a parade of soldiers. After doing this, they walked to the southwest corner of 15th street and Grand Avenue to catch a car home, they living in the east part of the city. After standing there awhile they concluded to walk east on 15th street to McGee street that being the next one to Grand Avenue, where they thought their chances of catching an east bound car, coming north on McGee to 15th, would be better. Plaintiff, holding her boy by the hand (her left) and with her husband behind her, started from the sidewalk, at the southwest corner of 15th and Grand, going east across Grand Avenue to the southeast corner of said intersection. Just before she stepped off the sidewalk into the street she looked north up Grand Avenue to see if the way was clear, and finding that it was, she started east across Grand Avenue. She had gotten "four or five good steps" out into the Avenue from the curbing when defendant's automobile (driven by a negro chauffeur), which came from the west along 15th street and was going east across the intersection, suddenly and without warning and when only a few feet from plaintiff, turned south toward plaintiff and the boy and still without warning proceeded toward them. Plaintiff, looking around, saw it coming toward and near her, and, thinking she and the boy would be run down if they did not get out of the way, she pushed her boy back and turned quickly to the left in an effort to escape. In doing so she fell and fractured the neck of her left femur, it being the part that joins the head of the femur (which fits into the hip socket), to the femur itself. The evidence is that she is crippled for life, never being able to use the leg again in walking. When she fell she attempted to get up but fell again, and by this time the automobile had stopped at a distance of two or three feet from her. Plaintiff was directly in front of it when she fell and when it stopped. Speaking of the car, she said, Upon objection, however, the court struck out the "coming so rapidly" part as a conclusion. She said she thought the automobile was six or eight feet from her when she learned of its presence and it was coming directly towards her. She further testified that she did not hear any horn, or signal or sound of any kind.
Fifteenth street, on the west side of Grand Avenue, is thirty-one feet ten inches wide from curb to curb. From the south rail of the street car track on 15th street to the sidewalk on the south side of said street is nine feet, four inches. The sidewalk on the south side of 15th street is seven feet wide. Plaintiff, when she stepped off this sidewalk to cross Grand Avenue, was somewhere in the middle portion of the sidewalk for there were people to the north and south of her while she was on the sidewalk. Grand Avenue, at the south side of 15th street, is sixty-nine feet nine inches wide.
Mrs. Angle, an acquaintance of plaintiff, was on the sidewalk close to plaintiff when the latter stepped from the sidewalk into the street. She testified that when plaintiff stepped off the sidewalk to cross the street the automobile was going west; that when plaintiff and her boy were four or five steps out into the street the automobile turned south. Speaking of the automobile she said "it came so quick it looked just like it was going to run over her." On motion, the court struck out the words that it was "coming so quick." Further on, the witness said "the car was coming towards her and it looked like the car was going to strike her." The trial court struck out the part of the answer "that it looked like the car was going to strike her," and directed the jury not to consider it. Witness said plaintiff fell and the car stopped "just about two feet from her." Witness further said she heard no horn or signal given by the chauffeur or anyone else.
A traffic policeman who was assigned to the intersection at 15th and Grand during the parade was in the center of the intersection directing the traffic at the time of the plaintiff's fall. He testified as a witness in her behalf. He says that when he saw the automobile it was in 15th street and east of the intersection and he gave it the signal to go west; that the chauffeur gave no indication or signal that he desired to go south or in any direction other than west the one the automobile was going. After the policeman gave the signal to go west the automobile went west on the south side of the street and then turned south. Witness was...
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