Thompson v. Kansas City

• Decision Date: 26 May 1941
• Docket Number: No. 19909.,19909.
• Citation: 153 S.W.2d 127
• Parties: THOMPSON v. KANSAS CITY et al.
• Court: Missouri Court of Appeals

153 S.W.2d 127

THOMPSON v. KANSAS CITY et al.

No. 19909.

Kansas City Court of Appeals. Missouri.

May 26, 1941.

Rehearing Denied June 30, 1941.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

"Not to be published in State Reports".

Action by Ruth June Thompson against Kansas City, Mo., and Charles Bryant to recover for the death of the plaintiff's husband. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Allan R. Browne and Ralph Griffith, both of Kansas City, for appellant.

James Patrick Quinn, of Kansas City, for respondents.

BLAND, Judge.

This is an action for damages for personal injuries. At the close of plaintiff's testimony the court marked "given" defendants' instruction in the nature of a demurrer to the evidence, whereupon, plaintiff took an involuntary nonsuit and, her motion to set same aside having been overruled, she has appealed.

The facts show that plaintiff is the widow of John Thompson, who was killed on June 5, 1939, as the result of having been run over by a truck, after having fallen off of its running board. Thompson, at the time in question, was an employee of the defendant, Kansas City. He was a member of one of its street repair crews, which was engaged in repairing holes in the asphalt pavement of Hardesty Avenue in Kansas City. The crew consisted of several men who engaged in various activities, such as cutting out the sides of the holes to be repaired, preparing them for and filling them in with asphalt, levelling the asphalt with rakes and ironing or smoothing it with hot irons. Thompson was doing the work of an ironer or smoother.

In connection with the work defendant furnished a truck, which was used for the purpose of taking the members of the crew to and from their work, to transport them from place to place where the work was being done, for hauling tools and material, and also to go after material when needed during the progress of the work. It also pulled a vehicle called a "fire pan", which was used for heating the tools.

The truck was owned by one Bryant, who rented it and its driver to the City. It was admitted at the trial of the case, and the case was tried upon the theory, that the truck and the driver were under the exclusive control and direction of the City at the time of the death of deceased. The evidence shows that the driver of the truck and the deceased were working under a common foreman of the City.

The body of the truck consisted of a cab and an open bed to the rear. The members of the repair crew would ride in the seat with the driver and also upon a board placed across the rear end of the bed. They, also, would ride on the running board, under the instructions of the foreman, when going from one repair place to another. Every time the crew moved the members thereof rode on or in the truck. Immediately before the happening of the casualty in question the truck had stopped and the fire pan had been disconnected. The truck had again started up and was going at a slow rate of speed when deceased hailed it and it stopped still momentarily. Deceased then got securely on the left running board, holding firmly to the cab with one hand and to the bed of the truck with the other. The truck then started up with a sudden lunge or jerk and threw deceased off of the running board, and the left back dual wheels of the truck ran over him. The witnesses testified that the truck started with a "jerk" or "lunge"; that the truck was jerked from underneath deceased and went forward with such suddenness that the front wheels were raised off of the ground. The record is not very clear as to where the driver of the truck, or deceased, was intending to go at the time of the casualty but there were holes to be repaired further along the street at that time.

There is nothing in the evidence to indicate that the truck was caused to lunge forward by reason of anything other than the negligence of the driver of the truck. There was evidence by one...