Stone v. Leritz

• Decision Date: 06 July 1914
• Citation: 170 S.W. 400,182 Mo.App. 315
• Parties: RAYMOND STONE, by his Next Friend, Respondent, v. LOUIS LERITZ, Appellant
• Court: Kansas Court of Appeals

170 S.W. 400

182 Mo.App. 315

RAYMOND STONE, by his Next Friend, Respondent, v. LOUIS LERITZ, Appellant

Court of Appeals of Missouri, Kansas City

July 6, 1914

Appeal from Jackson Circuit Court.--Hon. Harris Robinson, Judge.

AFFIRMED.

Judgment affirmed.

Sharp & Sharp and Ed. E. Aleshire for appellant.

Botsford Deatherage & Creason and W. N. Deatherage for respondent.

OPINION

TRIMBLE J.

Plaintiff, not quite sixteen years old, was engaged in Messenger Service. On November 27, 1912, in going east on the right-hand side of Fifteenth street in Kansas City Mo., riding a bicycle and approaching the intersection of Fifteenth and Campbell streets, he collided with one of defendant's moving vans at or near the southwest corner of said intersection, and was run over by said van, suffering a broken leg and other painful bodily injuries.

He brought this suit by next friend charging that the collision was the direct and proximate result of the negligence of defendant's servant in driving said van on the left-hand side of the street in violation of an ordinance of the city which required that "Every person using any vehicle on any street in the city of Kansas City, shall operate, drive or ride such vehicle on the portion to the right of the center of the street, except where the right side of the street is in such condition as to be impassable."

A jury in the circuit court heard the evidence and returned a verdict for $ 800. Defendant appeals, and claims that his demurrer to the evidence should have been sustained because plaintiff was guilty of contributory negligence. Of course, before such claim can be effectual here, plaintiff must be guilty of contributory negligence as matter of law. Contributory negligence as a jury question has been set at rest by the verdict, and if the case presents it as no more than a jury question, we ought not to interfere and shall not.

A reading of the record clearly discloses that it was merely a question for the jury. Plaintiff cannot be held guilty of contributory negligence as a mere cold proposition of law. A statement of the facts will demonstrate this.

Campbell street, thirty-six feet wide from curb to curb, runs north and south. Fifteenth street runs east and west and crosses Campbell, of course, at right angles. From the west line of Campbell street west, Fifteenth street, between curbs, is forty-nine feet wide; while from the east line of Campbell street east, Fifteenth street is seventy-six feet wide from curb to curb. As stated, plaintiff was riding his bicycle along the south side of Fifteenth approaching the intersection of Campbell street. A three-story hotel stood flush with both streets at the southwest corner of the intersection. Plaintiff, as he approached the intersection could not, because of this hotel, see any part of Campbell street south of the intersection. That is, he could not see or know that defendant's wagon was also approaching the same corner coming from the south and going north, and on the left-hand side of the street. It is true, he saw the team when it came past the corner into the square formed by the intersection, and of course knew then that the team and the wagon behind it were on the wrong side of the street and where no one in his situation would have reason to expect them, but at this time he was so close to the wagon and team that he could not stop or avoid the collision. He turned south on Campbell in an attempt to do so, and would have succeeded had defendant's wagon been even a few feet nearer the side of the street it should have been on. This is shown by the fact that, even as it was, plaintiff's bicycle came very near escaping by getting between the wagon and the west curb of Campbell street, but the rear wheel of the wagon caught his bicycle and threw plaintiff under the wagon. A very few feet more of space would have enabled the boy to escape the collision.

Campbell street, south of Fifteenth, was paved and in good condition. There was, therefore, no reason for defendant's wagon being on the left side of the street, and its being there was in violation of the ordinance. If such act proximately caused plaintiff's injury, and his negligence did not contribute thereto, defendant is liable. [Jackson v. Kansas City etc. R. Co., 157 Mo. 621, l. c. 634; Brannock v....