State ex rel. Kansas City Pub. Serv. Co. v. Bland

• Decision Date: 04 June 1945
• Docket Number: No. 39206.,39206.
• Citation: 188 S.W.2d 650
• Parties: STATE OF MISSOURI at the Relation of KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Relator, v. EWING C. BLAND, NICK T. CAVE and SAMUEL A. DEW, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

188 S.W.2d 650

STATE OF MISSOURI at the Relation of KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Relator, v. EWING C. BLAND, NICK T. CAVE and SAMUEL A. DEW, Judges of the Kansas City Court of Appeals.

No. 39206.

Supreme Court of Missouri.

Court en Banc, June 4, 1945.

Rehearing Denied, July 2, 1945.

Certiorari.

OPINION OF COURT OF APPEALS QUASHED IN PART.

Charles L. Carr, Watson, Ess, Groner, Barnett & Whittaker, Carl E. Enggas and Douglas Stripp for relator.

(1) Respondents' opinion conflicts with the controlling decisions of this court in Scott v. Kurn, 343 Mo. 1210, 126 S.W. (2d) 185; Rischeck v. Lowden, 347 Mo. 426, 147 S.W. (2d) 650, and Danzo v. Humfeld, 180 S.W. (2d) 722, and respondents therefore erred, in holding that there is an exception to the rule respecting a motorist's duty at an obstructed-view crossing, viz., that ordinary care does not require him to constantly look and listen as he approaches a crossing and he should not be held negligent, as a matter of law, in attempting to cross, if the track appears to be clear for such a distance that he would have time to cross before a car going at the usual and lawful rate of speed would reach him. Respondents' opinion is further out of harmony with the controlling decisions in failing to follow them on facts to which they clearly applied. Scott v. Kurn, 343 Mo. 1210, 126 S.W. (2d) 185; Rischeck v. Lowden, 347 Mo. 426, 147 S.W. (2d) 650; Danzo v. Humfeld, 180 S.W. (2d) 722; Borrson v. M.-K.-T.R. Co., 351 Mo. 229, 172 S.W. (2d) 835. (2) Respondents' opinion conflicts with the controlling decisions in Smith v. Wells, 326 Mo. 525, 31 S.W. (2d) 1014, and Hill v. St. Louis Pub. Serv. Co., 64 S.W. (2d) 633, and respondents thereby erred, in holding that plaintiff was not negligent, as a matter of law, because he could assume from 160 feet of clear track that he had time to cross in safety. Smith v. Wells, 326 Mo. 525, 31 S.W. (2d) 1014; Hill v. St. Louis Pub. Serv. Co., 64 S.W. (2d) 633; Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14; Highfill v. Wells, 16 S.W. (2d) 100; Jordan v. St. J. Ry., L.H. & P. Co., 38 S.W. (2d) 1042. (3) Respondents' opinion conflicts with this court's decision in Bush v. Kansas City Pub. Serv. Co., 350 Mo. 876, 169 S.W. (2d) 331, and respondents thereby erred, in holding that Section 48(a) of the Kansas City Traffic Code was inapplicable, Bush v. Kansas City Pub. Serv. Co., 350 Mo. 876, 169 S.W. (2d) 331.

E.E. Thompson, Alfred H. Osborne, Thompson & Osborne and Lillie Knight for respondents.

(1) Respondents' opinion holding that plaintiff was not guilty of contributory negligence as a matter of law, is not in conflict with the controlling decisions of this court involving the same or similar facts nor does the opinion announce a principle or rule of law which conflicts with the latest controlling decisions of this court. State ex rel. K.C. v. Trimble, 322 Mo. 360, 20 S.W. (2d) 17; State ex rel. Tunget v. Shain, 340 Mo. 434, 101 S.W. (2d) 1; State ex rel. Emery Bird Thayer D.G. Co. v. Shain, 348 Mo. 650, 154 S.W. (2d) 775; State ex rel. Tramill v. Shain, 349 Mo. 82, 161 S.W. (2d) 974; State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W. (2d) 582; State ex rel. Consolidated School Dist., No. 2 of Pike County v. Haid, 328 Mo. 729, 41 S.W. (2d) 806; State ex rel. United Transports, Inc., v. Blair, 180 S.W. (2d) 737; Rentfrow v. Thompson, 348 Mo. 970, 156 S.W. (2d) 700; Bedsaul v. Feeback, 341 Mo. 50, 106 S.W. (2d) 431; Scott v. Kurn, 343 Mo. 1210, 126 S.W. (2d) 185; Monroe v. Chicago & A.R. Co., 297 Mo. 633, 249 S.W. 644; Threadgill v. United Rys. Co., 279 Mo. 466, 214 S.W. 161; Jackson v. Telephone Co., 281 Mo. 358, 219 S.W. 655; Highfill v. Wells, 16 S.W. (2d) 100; Jordan v. St. J. Ry., L., H. & P. Co., 38 S.W. (2d) 1042; Shumate v. Wells, 9 S.W. (2d) 632; Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14; State ex rel. Chicago, R.I. & P. Ry. Co. v. Ellison, 173 S.W. 690. (2) Respondents' opinion holding that Section 48 (a) of the Kansas City Traffic Code inadmissible in evidence is not in conflict with any decision of this court. State ex rel. M.-K.-T.R. Co. v. Shain, 124 S.W. (2d) 1141; State ex rel. Wors v. Hostetter, 124 S.W. (2d) 1072.

DALTON, C.

Original proceeding in certiorari to quash, for alleged conflicts, the opinion of respondents in the case of Pettyjohn v. Kansas City Public Service Company (Mo. App.), 181 S.W. (2d) 179.

The cause before respondents was an action for damages for personal injuries, which had been submitted to a jury upon both primary and humanitarian negligence. Verdict and judgment had been for plaintiff and defendant had appealed. On appeal, appellant contended that plaintiff was guilty of contributory negligence, as a matter of law, and that the trial court had erred (1) in submitting the cause on primary negligence and (2) in excluding from the evidence section 48(a) of the Kansas City Traffic Code. Respondents affirmed the judgment and relator contends that respondents' rulings, on the issues mentioned, conflict with prior controlling decisions of this court.

Respondents stated the facts (in so far as they affect the issue of primary negligence) about as follows: Plaintiff was injured June 26, 1941, when the truck he was operating eastwardly across a street car line on Wyoming Street in Kansas City, Missouri, was struck by defendant's northbound street car. Plaintiff had just unloaded some freight at the Rock Island motor freight depot dock on the west side of Wyoming Street and was proceeding away from the dock when the collision occurred. The dock with 12 doors, numbered from north to south, was located 35 feet and 4 inches west of and parallel to the street car line in Wyoming Street. Eight feet of this space (adjoining the dock) was outside of Wyoming Street, but all was paved with the same material and constituted one thoroughfare. The pavement east of the street car track was 13.85 feet in width. The street cars operating on the track had an "overhang" of 18 inches on either side.

Plaintiff's truck, 23 feet in length, was parked headed east, 12 feet back from the nearest street car rail, with its rear at No. 2 door of the dock. Plaintiff sat 8 feet back from the front of his truck (15 feet from its rear). A solid sided trailer 18 feet in length stood 8 or 16 feet south of plaintiff's truck. A tractor with glass windows and windshield, stood in front of this trailer and extended out 3 or 4 feet further than plaintiff's truck and to within 8 or 9 feet of the street car track. There was a space 18 inches wide between the trailer and tractor.

"Plaintiff testified that, while he could not see to the south over the trailer, by looking through the 18 inch space and through the glass in the tractor and over the tractor, he could see 200 to 250 feet to the south and could see a street car trolley over the top of the tractor for that distance. He further testified ... that he looked south and saw no car approaching; that he then started up and, after driving between 4 and 5 feet, he looked to the north and, after looking to the north, he looked to the south again. By that time the front end of his truck `was just starting over the west rail ... I might have been 6 inches or a foot across the west rail.' At this time he, sitting in his truck, had arrived at a point immediately in front of the tractor. When he looked to the south the second time he saw the street car approaching about 65 to 75 feet away. The car was proceeding at a rate of speed of 15 or 20 miles per hour. He immediately attempted to place his truck in reverse and applied his brakes but he was unable to back up. He stopped his truck with its front wheels `two, or it could be six inches' west of the east rail of the street car track.

"He testified that, from the time he started up until he attempted to stop, he was proceeding at a rate of speed of 2 to 2½ miles per hour; that he had stopped about a half a second before the collision. He testified that he was familiar with the fact that there was always heavy traffic at this point at this time of day (about 6:30 P.M.).

"A number of witnesses for plaintiff testified that the approaching street car gave no warning signal and that the car did not decrease its speed as it approached the point of the collision ...

"The evidence shows that there was a slow sign suspended from the trolley wires slightly north of number 2 door. Plaintiff's witness, Brumfield, testified that the operators of street cars are instructed, when driving in the vicinity of such a sign `to keep your car under control so you can stop without getting into any trouble. Q. And the speed, does that have reference to? A. The normal speed with reference to that was usually five or six miles per hour, a slow sign, a dangerous point.' ..."

There was evidence that the street car, traveling at 20 miles per hour, could have been stopped in 50 to 55 feet. Defendant's evidence showed that the street car was traveling at a speed of 18 miles per hour; that it was actually stopped in 57 to 60 feet; and that 60 to 65 feet would have been a good stop after the emergency arose.

Respondents ruled the issue presented as follows: "There is nothing contrary to physical laws in plaintiff's testimony that he could see through the windows of the tractor in such a manner as to discern an approaching object as large as a street car, or a trolley attached to the top thereof. Assuming that he was mistaken in saying that, when he first looked south he could see as much as 200 feet away, when, as a matter of fact, he could only see 160 feet, which defendant admits there was evidence sufficient to show, we do not think that plaintiff should be convicted of contributory negligence, as a matter of law, in not looking again until his truck had proceeded to the place where it was impossible to avert a collision were a street car approaching. Of course, it is the general rule that one approaching a railroad or...