Stout v. Kansas City Public Service Co.
| Citation | 17 S.W.2d 363 |
| Decision Date | 20 May 1929 |
| Docket Number | No. 16473.,16473. |
| Parties | STOUT v. KANSAS CITY PUBLIC SERVICE CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
Action by William Stout against the Kansas City Public Service Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Watson, Gage & Ess, of Kansas City, for appellant.
Trusty & Pugh, of Kansas City, for respondent.
This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $2,000.00. Defendant has appealed.
Plaintiff was injured about 9:30 or 10:00 p. m. of the night of January 30th, 1926, while crossing 15th Street at Harrison Street in Kansas City. Harrison Street is a public street running north and south in said city and about thirty feet in width. Fifteenth Street is likewise a public street running east and west and having double street car tracks running along the center thereof. East bound cars run on the south tracks. It is 30 feet 11 inches from the south curb of 15th Street to the first rail of the east bound car tracks. Plaintiff was injured on the west side of Harrison Street by being struck by an east bound street car on 15th Street.
Plaintiff testified that he was on the south side of 15th Street at the southwest corner thereof intending to cross to the north side of the street on his way home; that it was drizzling rain at the time; that when he arrived at the curbing, before starting across the street, he looked west for a street car and could see no further than a block west; that he saw no street car approaching; that there were automobiles approaching from the west; that after looking to the west he proceeded across the street; that while he was between the curb and the first rail of the street car track there were automobiles passing in front of him and to his rear; that when he reached a point near the first rail of the street car tracks he stopped upon hearing a horn being sounded upon an automobile approaching from the west; that when he stopped he was "standing right up close to the rail," "right up by the rail"; that in walking from the curb to the street car track he walked with "his head up in a normal position, in a normal way"; that he remained at the street car track about a second or two when he proceeded on; that when he reached the middle of the east bound track he again hesitated a moment on account of a west bound street car passing in front of him; that after this car passed he proceeded on; that while he was stepping off of the north rail of the east bound track with his left foot an east bound street car struck his right leg, causing his injuries of which he complains; that he "got very nearly one foot off when I was struck."
Plaintiff testified that he did not again look to the west after leaving the curb and did not know of the approaching street car until after it struck him; that he had no idea that a street car would approach the place where he crossed the tracks, for the reason that he had not seen one within a block at the time he last looked; that he was listening and did not hear an approaching street car or bell or gong sounded upon it; that he was listening all the time; that his hearing was good; that he heard various automobiles blowing their horns at the crossing.
Two other of plaintiff's witnesses, who were in a position to hear, stated that they heard no warning sound given by the car.
The motorman testifying for the defendant, stated that cars did not regularly stop at 15th & Harrison Streets; that the car window in front of him was up and on account of the mist or drizzling rain collecting upon the glass through which he was required to look and the presence of automobiles going in the opposite direction with bright lights shining upon the glass, he was unable to see clearly in front of him; that he was unable to see for any greater distance south of the south rail of the track upon which his car was running than six or eight feet; that he saw a person six or eight feet from the south rail and twenty or twenty-five feet in front of him but could not then tell whether it was a man or a woman; that he immediately threw off his power; "throwed it in emergency, gave it all the air * * * got to my sand and rang my bell"; that the first thing he did was "I got on my bell, rang the bell, and threw my power off, and got on to the sand, and threw it over to the right in emergency"; that he was required to move his foot from the bell to the sand and at the same time he "was pulling" his "lever off and throwing on" his "brakes"; that he stopped his car between 35 and 40 feet after seeing this person (plaintiff); that at the time he saw this person the car was going at the rate of about ten or twelve miles per hour; that the car ran about twelve or fifteen feet after it struck plaintiff before it stopped; that in his opinion the car, under the circumstances, could have been stopped within 35 or 40 feet going at the rate of twelve miles per hour; that he made the shortest stop that he could have made under the circumstances; that his brakes were in good condition.
While the motorman further testified that he could see "the glare of the rail" fifty or seventy-five feet in front of him, as to how far he saw or could have seen down the track between the rails he did not testify, but he did state, "there was nothing in the street anywhere, right in the center of the street."
Plaintiff placed upon the stand one Murray, an expert motorman, who testified that he was acquainted with the type of street car in controversy and by actual experience had found that a reasonably prudent motorman can stop such a car, with the brakes in good condition, with the rails wet from a drizzling rain and on a level street, with safety to the car, the motorman and the passengers, in from six to ten feet; that with such a car going at the rate of twelve miles per hour, under the same conditions, it can be stopped from nine to twelve feet; that going at the rate of fifteen miles per hour from ten to fifteen feet and going at the rate of twenty miles per hour in not over twenty feet; that this would be a service stop and not an emergency stop; that the instructions of the company were to have the car always under control; that a car traveling at ten miles per hour is under control and can be stopped in less than ten feet; that customarily the motorman stands with his hand "on your air, that checks a little, your car checked with the air a little bit, and your hand on the controller, or you could be shut off"; that when an emergency stop is made the motorman first shuts off the controller by reaching and pulling it back, then he reaches and pulls the reverse handle back and then gives the controller "a few points of electricity contact"; that it would take more than three seconds of time to do all these things and "get the air to the piston head or cylinder head back 20 feet back, and have that applied to the—have the brake shoes applied to the wheels."
The motorman of the car in question also testified that it required three seconds of time to stop his car under the conditions he was operating it on the night in question. It was admitted at the trial that:
"A car traveling 10 miles an hour is traveling 15 feet a second; traveling 12 miles an hour, 18 feet; and 20 miles an hour, 30 feet; 30 miles an hour traveling 45 feet a second."
Defendant's witness Roth testified that the street car was running at a rate of speed of from twelve to fifteen miles per hour when it struck plaintiff and that it ran from twelve to fifteen feet after striking him. At one place in his testimony he stated that he thought the car ran twelve or fifteen feet after he saw it checking its speed. Afterwards he said he did not know whether or not he saw it the instant it started checking its speed; but that it ran twelve to fifteen feet after it had started to stop before it stopped. However, he did testify that the car was going twelve to fifteen miles per hour when it struck plaintiff and that it ran twelve to fifteen feet after striking him.
At the time plaintiff was injured the car in question was being operated by receivers. However, the liability, if any, of the receivers has been assumed by defendant.
It is insisted by the defendant that the court erred in refusing to give its instruction in the nature of a demurrer to the evidence at the close of the testimony for the reason that plaintiff's testimony at the trial contradicted that given by him in his deposition and that the change in his testimony was not sufficiently explained.
Plaintiff claims that there is no material difference in his testimony given in the deposition and that given at the trial, and if there were any, it was sufficiently explained. However, we need not go into this question for the reason that in considering the demurrer to the evidence, the fact that plaintiff testified differently, if any, at the trial than he did in his deposition and that the difference is material and that he gave no excuse at the trial for the change in his testimony, is a question solely for the jury. Lane v. St. L.-S. F. R. R. (Mo. App.) 10 S.W.(2d) 962; Katz v. North Kansas City Dev. Co. (Mo. App.) 14 S.W.(2d) 701.
It is insisted that:
"The testimony of plaintiff's expert, William Murray, that defendant's street car, traveling under the conditions prevailing at, and just prior to the time of the accident, could have been stopped, going at the rate of ten miles per hour, in from six to ten feet; going twelve miles an hour in from nine to twelve feet; and going fifteen miles an hour, in from ten to fifteen feet, is so contrary to known physical facts and common experience that it had no probative value whatsoever and raised no issue for the consideration of the jury."
However, there is testimony other than that of Murray but of defendant's own witnesses that the...
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