Sullivan v. Kansas City Public Service Co.

• Decision Date: 05 June 1950
• Docket Number: No. 21313,21313
• Citation: 231 S.W.2d 822,241 Mo.App. 56
• Parties: SULLIVAN v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 822

231 S.W.2d 822

241 Mo.App. 56

SULLIVAN v. KANSAS CITY PUBLIC SERVICE CO.

No. 21313.

Kansas City Court of Appeals, Missouri.

June 5, 1950.

Charles L. Carr, Alvin C. Trippe, Hale Houts, Hogsett, Trippe, Depping, Houts & James, all of Kansas City, for appellant.

Trusty, Pugh & Green, Guy W. Green, Jr., Arvid Owsley, James L. Williams, all of Kansas City, for respondent.

SPERRY, Commissioner.

Plaintiff sued for damages growing out of personal injuries received when one of defendant's busses moved backward, pinning plaintiff's legs between the rear bumper of that bus and the front bumper of a bus parked about four feet behind it. The case was tried to a jury and plaintiff had a judgment in the sum of $7458, from which defendant appealed.

The accident occurred at the northwest corner of the intersection of 8th and Grand, in Kansas City. Directly east, across Grand Avenue, is a Katz store, in front of which defendant's street cars, from the south and east part of the city, take on and discharge passengers. This corner is a transfer point for passengers from street cars to busses or vice versa.

People who are employed in the industrial and business districts in the north and west part of the city, leave the street cars and walk across the street to get on the busses. The accident occurred at about 7 a. m., April 2, 1946. The evidence was to the affect that the street car and bus traffic, including transfers, was extremely heavy at this corner, at that time of the day. Frequently there are two or more busses parked, one behind the other. Plaintiff stated that he had seen as many as four busses parked, one behind the other. Both of defendant's drivers, as well as others, testified regarding the heavy traffic. Plaintiff stated that, on the morning in question, he arrived in front of the Katz store at about 7 a. m., on one of defendant's street cars. He took a transfer and walked across the street, to the northwest corner, to board a bus. He followed the regular 'walkway' for pedestrians. One bus was parked, with the front end near the corner, and another about four feet behind it. Both were taking on passengers and, when he arrived at a point even with the front end of the south bus, the driver closed the door and prepared to move out. Plaintiff, instead of continuing westward along the 'walkway', across the front of the bus turned and walked northward along its east side. When he reached the rear of the bus he turned westward, intending to pass between the two busses. He stated that, when he entered this opening, the bus was not yet in motion; that after he entered the passageway the south bus started forward, then came back to the north, catching and pinning his legs as aforesaid; that it then started and moved forward again, releasing him, and stopped; that the bus driver got out of the bus, came back to plaintiff, who was on the sidewalk, and told him that the brakes did not hold. Plaintiff also testified to the effect that many people passed behind and between busses parked at this point; that three people preceded him through this passage on this occasion.

Mr. Scott, testifying for plaintiff, stated that he had operated a garage near this intersection and observed people leaving the busses on the west side of the street and the street cars on the east side; that large numbers, when traffic was heavy, crossed the street in both directions, at all angles; that they habitually passed in front of, behind and between the busses, any way and every way. Defendant objected to this testimony as irrelevant and on the grounds that no such custom was pleaded. The objection was overruled. It was admissible as bearing on the question of defendant's negligence, and of plaintiff's contributory negligence. Shamp v. Lambert, 142 Mo.App. 567, 121 S.W. 770, 772. The evidence was relevant, Jones Commentaries on Evidence, Section 587, and admissible, McPherson v. Premier Service Company, Mo.App., 38 S.W.2d 277, 278; White v. Hasburgh, Mo.App., 124 S.W.2d 560, 564.

The driver of the offending bus testified to the effect that he knew that the traffic was heavy at this corner; that he knew that large numbers of pedestrians crossed the street, in transferring from defendant's street cars to its busses, but that he paid no attention to them or where or how they walked; that he knew that, frequently, two busses were parked, one behind the other, as they were parked on this occasion; that he had a very heavy load, thirty people in the seats and with from twenty to thirty passengers standing; that because of the passengers standing he was unable to see through the rear view mirror, and could not see either plaintiff or the second bus; but he admitted that he stated in his deposition that he did see the rear bus, through the mirror, after someone yelled about the accident.

He stated that, after the bus was loaded, he took his foot off of the brake and placed it on the gas pedal; that when the motor accelerated and the gears engaged (the gears were disengaged while the motor was idling) he fully released the hand brake, shoving it forward the full distance permitted, about two feet; that the bus moved forward about a foot; that the motor died and it rolled back to the north; that he immediately stopped it with the foot and hand brake, started the motor, and pulled forward; that he did not know of plaintiff's predicament until, after the bus had rolled backward, he heard a shout; that after learning of the accident he stopped the bus, went to plaintiff, and gave him his name and number; that he did not tell plaintiff that the brake failed. He stated that the bus rolled backward, when the motor died, because of the heavy load and the grade; that the motors on such busses would die on occasion, but not frequently, when heavily loaded or on a grade; that he could have kept the bus from rolling backward had he not completely released the hand brake, but kept it in contact as he started and pulled forward; that he knew that a bus would roll backward when heavily loaded, on a grade, if the motor should die.

Mr. Miller, defendant's driver on the second bus, stated that he did not see plaintiff until after the bus had pinned him between the bumpers; that he had parked his bus about four feet behind the front bus; that pedestrian traffic was heavy at this corner; that busses were frequently parked there, one behind the other; and that he had seen pedestrians pass between parked busses, but that he did not see any pass between the busses on the morning of the accident.

Plaintiff pleaded, as grounds for recovery, that the bus 'was negligently caused, allowed, or permitted to back up.' Defendant denied any negligence on its part and pleaded that plaintiff was guilty of contributory negligence.

Defendant's first point is that its motion for directed verdict should have been given because it owed plaintiff no duty and was not negligent as to him. Defendant's agent was charged with knowledge that this intersection was a busy one; that busses habitually parked, one behind the other; that people passed in front of, behind, and between busses during the busy hours, in boarding and leaving them. He was required to exercise the highest degree of care in the operation of a motor vehicle on the streets and highways, so as not to endanger any person. Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463, 466. Plaintiff had the same right to use the street as did defendant's bus, and to be where he was when struck. Meenach v. Crawford, Mo.Sup., 187 S.W. 879, 882; Pitcher v. Schoch, supra. Defendant's driver admitted, on cross examination, that he could have prevented the bus from rolling backward had he controlled its movement in this respect by retaining contact with the hand brake. The jury could have found that to be a fact; and it could have found negligence in his failure to so act. The fact that the driver did not, in fact, see plaintiff entering between the busses, or could not have seen him after he entered, constitutes no defense. He is charged with knowledge that pedestrians, or automobiles, might be in the backward path of the bus at any time, and that persons might thereby be injured.

Defendant also contends that a verdict for it should have been directed because plaintiff was guilty of contributory negligence as a matter of law in having entered between the busses while standing, as they were, on a rather steep incline. Defendant concedes that a pedestrian is not negligent, as a matter of law, merely because he attempts to cross a street at a place where there is no intersection. However, plaintiff's act in this respect certainly gives reason for consideration of the question of contributory negligence by the jury. Pitcher v. Schoch, supra, 139 S.W.2d 466. However, it is urged that the question should have been decided by the court, as one of law, rather than by the jury, as one of fact. Reasonable minds might well differ as to whether or not plaintiff conducted himself as a reasonable prudent person would have done under the same or similar circumstances. Others passed behind and between busses at this intersection. The south bus was preparing to move forward when plaintiff reached a point in front of it, or near its front. Whether it would have been better judgment...