Tyrer v. Moore

• Decision Date: 05 March 1923
• Docket Number: No. 14601.,14601.
• Citation: 250 S.W. 920
• Parties: TYRER v. MOORE.
• Court: Missouri Court of Appeals

250 S.W. 920

TYRER v. MOORE.

No. 14601.

Kansas City Court of Appeals. Missouri.

March 5, 1923.

Rehearing Denied April 27, 1923.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by William M. Tyrer against Henderson B. Moore. Judgment for plaintiff, and defendant appeals. Affirmed.

McGilvray & Warren, of Kansas City, for appellant.

John F. Cell, of Kansas City, for respondent.

ARNOLD, J.

This is an action for damages for personal injury, caused by a collision between plaintiff's automobile and one driven by an agent, or servant, of defendant. The verdict and judgment were for plaintiff in the sum of $2,500, and, after unsuccessful motions for new trial and in arrest of judgment, defendant appeals.

The facts shown by the record are as follows: On February 5, 1919, plaintiff, accompanied by one M. F. Arnold, was driving a Ford car south on Hardesty avenue in Kansas City, Mo., at its intersection with Fifteenth street. Plaintiff was seated on the left and Arnold on the right, or west side, of said car. At the same time an employee of defendant was driving west on Fifteenth street a combination hearse and ambulance belonging to defendant. At the intersection of Hardesty avenue with Fifteenth street, and to the south thereof, there is a sharp incline into and on Hardesty avenue. On reaching said intersection, and before entering Fifteenth street, plaintiff stopped, or practically stopped, his car and looked first west and then east on Fifteenth street. To the eastward and about 75 yards away, he saw defendant's car coming west. Plaintiff then proceeded to cross Fifteenth street, going at the rate of 8 to 10 miles per hour, thinking he could cross in safety. He states he did not again look to the east, and that when his car was on the south rails of the double street car track on Fifteenth street, defendant's car, going at a rate of 40 to 45 miles per hour, swerved to the south and struck plaintiff's car at or near the left front wheel; that said car was thereby completely turned around so that it was again facing south and the left front fender, wheel, and radiator were damaged and the car upset.

Plaintiff's testimony shows that defendant's car then swerved to the right, crossed the curb on the north side of Fifteenth street, and landed upright in a declivity on an adjoining lot. As a result of the collision, plaintiff sustained two broken ribs, a broken finger, and numerous bruises and cuts on various parts of his body. Defendant's car was damaged on the right front wheel, the steering rod was broken but no glass. The testimony further shows that defendant's car was used both as a hearse and an ambulance and for the purpose of designating it an ambulance, when so used, a sign was slipped into a groove on each side of the vehicle on the inside, thus exposing to view the word "ambulance" through the glass sides thereof.

On the occasion in question, defendant had used the said combination car as a hearse in attendance at a funeral, and had sent the car back in charge of the driver to take some one to a hospital. The petition charges negligence in that (a) defendant's car was being driven at a high and dangerous rate of speed under the circumstances, (b) that the driver failed to cause said car to slow down at said Intersection, (c) failure to give audible signal, (d) failure to exercise ordinary care to discover plaintiff in a position of peril in time to have warned plaintiff of his danger. etc., and (e) in operating said motor vehicle, hearse, or ambulance in violation of the rules and ordinances for the regulation of street traffic in Kansas City, Mo., setting out sections 9 and 26 of ordinance No. 28759.

Defendant's amended answer is a general denial, a plea of contributory negligence and a counterclaim for damages to defendant's vehicle. The answer also pleads section 5 of the above-named ordinance, relating to right of way for police and fire vehicles, ambulances, etc.

Plaintiff's reply is a general denial, and admissions that Fifteenth street and Hardesty avenues are public thoroughfares in Kansas City, and that plaintiff was driving his automobile thereupon on the 5th day of February, 1919. On the issues thus made, the cause went to trial to a jury, with the results above indicated.

Under his points and authorities, defendant urges, first, that the trial court erred in refusing to sustain his demurrer at the close of plaintiff's evidence, for the reason that plaintiff's own testimony shows that he was guilty of contributory negligence which should preclude his recovery. In support of this contention, defendant insists that plaintiff knew defendant's motor vehicle was an ambulance, and therefore had the right of way under section 5 of the ordinance pleaded, thereby inferring that plaintiff should not have attempted to cross Fifteenth street until after defendant's vehicle had passed.

We fail to grasp the soundness of this argument, in the light of the fact that defendant's vehicle was an interchangeable hearse-ambulance, and that there was nothing to distinguish the hearse from the ambulance, excepting the small slide inside the glass side wall of the vehicle. Furthermore plaintiff's testimony shows that defendant's vehicle was a distance of 70 to '(5 yards east of the intersection when plaintiff started to cross Fifteenth street, and that it was coming almost directly towards him. It is too much to require of plaintiff that he see the differentiating sign on the side of the car under the circumstances.

It is also insisted plaintiff was negligent because he looked toward the oncoming car but once, to wit, when he first started across the street. The fallacy of this claim, lies in the fact that defendant seems to assume that when he is using his car as an ambulance he has the...