Weishaar v. Kansas City Public Service Co.

• Decision Date: 08 May 1939
• Docket Number: No. 19410.,19410.
• Citation: 128 S.W.2d 332
• Parties: WEISHAAR v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

128 S.W.2d 332

WEISHAAR v. KANSAS CITY PUBLIC SERVICE CO.

No. 19410.

Kansas City Court of Appeals. Missouri.

May 8, 1939.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be published in State Reports."

Action by Anna Weishaar against the Kansas City Public Service Company for personal injuries sustained in a collision between an automobile in which plaintiff was riding and defendant's street car. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Watson, Ess Groner, Barnett & Whittaker, Chas. L. Carr, and E. E. Ball, all of Kansas City, for appellant.

Trusty & Pugh and K. Martin Kirschner, all of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5500, and defendant has appealed.

The facts show that plaintiff was injured about 3:15 or 3:30 p. m. of February 1st, 1938, while riding as a passenger in an automobile being driven by her husband, when said automobile came into collision with defendant's street car at the intersection of Eighth and Oak Streets, in Kansas City. Plaintiff was riding on the right side of the automobile in the front seat and her husband was on the left side. The automobile was traveling north on Oak Street. The street car was moving east on Eighth Street.

There was evidence on behalf of the plaintiff that, as the street car approached the crossing, the motorman was talking in a loud voice with a passenger standing between him and the front door of the car to the south; that there was a stop sign on the south side of Eighth Street and the east side of Oak Street to the west of a hotel building, which building was located at the southeast corner of the intersection. There was no building on the southwest corner of the intersection but there was one located on the south side of Eighth Street about 50 or 60 feet west of said corner. The automobile in which plaintiff was riding approached the stop sign going at a rate of speed from 15 to 25 miles per hour. There was another automobile ahead, which stopped just north of this sign. Plaintiff's husband stopped his automobile very closely behind the other car. He stopped from 35 to 36 feet from the street car tracks. He then started up in low gear behind the other automobile. He testified that he looked west at this time and could see 150 feet and that there was no street car west of him within his vision.

Plaintiff's husband was a witness in her behalf and his testimony is conflicting as to when and how many times he looked toward the west. He first testified that as soon as he looked to the east, which was at the building line, he glanced back toward the west; that he saw nothing coming from either direction; that he again looked west when he arrived at about the south curb line. The evidence shows that it was about 11 feet from the building line to the curb and 11 feet from the curb line to the first street car track. He testified that, when he looked to the west at the south curb line, he could see for a distance of 150 feet and saw nothing coming; that thereafter he moved ahead 6 or 7 feet and again looked to the west and could see "better than a half block" and saw no street car approaching; that the last time he looked was when he was 5 or 6 feet from the track when he saw the car almost in front of him. He further testified that he could see further when he looked to the west at the curb line than when he looked in that direction at the stop sign.

He later testified that he looked west three times and that the last time was immediately before the street car struck his automobile; that the last time he looked "a glance would show it to you without looking — without even turning your head." It was then too late to avert a collision.

He was later put on the witness stand by plaintiff. He then testified that he looked west twice in all and looked to the east; that he was mistaken when he said he looked to the west at the south curb line; that he looked east at that time; that the only time he looked to the west, prior to reaching a point 5 or 6 feet east of the car track, was at the stop sign. He testified that the right front corner of the street car struck the front end of the left fender of his automobile. He further testified that the windows of his automobile were not frosted but that they were clear; that the left front window was open 4 or 5 inches and that he could hear any signals given and that he heard none.

After he started up, at or near the stop sign, he proceeded on toward the track in low gear, going at a rate of speed of from 8 to 15 miles per hour. Later he said he was going 4 or 5 miles per hour; that when he first saw the street car he immediately put on his brakes and at that time he was going 5 or 6 miles per hour; that it would require 10 or 12 feet for him to stop his automobile at this speed under the circumstances.

There was evidence that plaintiff did not take any part in the management of the driving of the automobile and there is no claim that the negligence of the plaintiff's husband, if any, is to be imputed to her.

Plaintiff stated that when the automobile started up, at or near the stop sign, she looked to the west and she noticed her husband glancing in that direction; that she did not thereafter look west; that she heard no signals of any kind; that she then looked to the east, "looking for a highway sign about the same time"; that as she got further around the hotel building she could see east and saw nothing coming; that she noticed the street car when she was about 4 or 5 feet from the track. There was testimony on the part of plaintiff that the street car, at the time of the collision, was going at a rate of speed of 20 to 25 miles per hour.

Defendant's witnesses testified that the street car was going from 10 to 15 and 12 to 15 miles per hour; that the automobile ran into the side of the street car after the front end of the latter had almost cleared the intersection. There is also evidence on defendant's part that the street car was about two-thirds across the intersection; that it was about mid-way of the intersection and that it was a little over half way across Oak Street at the time of the collision. There is also evidence, on the part of the defendant, that the street car, as it approached Oak Street, slowed its speed to about 5 miles per hour.

The motorman, testifying for the defendant, stated that when the street car reached a point opposite the west property line of Oak Street, he stopped the car momentarily and looked in both directions; that he saw no automobile approaching from the south near the tracks; that he could see south along Oak Street for a distance of 175 to 200 feet; that the closest automobile coming from the south toward the street car tracks was 175 feet therefrom; that he did not see the automobile hit the street car but, when he was 30 to 35 feet east of the property line of Oak Street, he heard the noise of glass breaking behind him; that he glanced around and immediately put on the emergency brake and stopped his car within 7 or 8 feet; that he got off of the car and found that the automobile had run into to the street car; that plaintiff's husband stated to him "I had no chains on my car, I started skidding and couldn't stop"; that he examined the side of the street car and found that the third window from the rear on the righthand side was broken; that the street car also had two or three marks on the right side; that there was one mark almost directly underneath the window; that "there was another mark down on the edge of the street car"; that the overhang of the street car was about 2 feet; that there was a vacant lot on the southwest corner of Eighth and Oak Streets, which extended about 55 feet east and west and that before he got past the west property line of Oak Street as he went east he could see south three-fourths of a block; that when he saw the automobile approaching the track 175 feet away he could not tell how fast it was going but it did not impress him that it was in any danger of crossing in front of the street car. He denied that he was conversing with a passenger.

The motorman further testified that the crossing was a very dangerous one; that he was "very familiar" with it. "It is a very dangerous crossing. In the conditions of that street at that time it was very dangerous for an auto or street car."

There was other testimony on the part of the defendant that Oak Street and the intersection were covered with ice and snow and that it was very slick. A passenger on the car stated that he saw the automobile when it was 60 feet south of Eighth Street; that when it was about 50 feet south of the intersection it began to skid sideways and slid into the side of the street car near the latter's back end; that the back end of the street car had almost cleared the intersection at that time; that the left side of the automobile struck the left-hand side of the street car.

Other passengers on the street car, testifying for the defendant, stated that the automobile started to skid when it was about 50 or 60 feet south of Eighth Street; that it skidded into the street car when the latter was practically two-thirds across the intersection; that the street was so icy that the driver of the automobile could not stop; that the automobile hit the street car broadside about two-thirds of the latter's length back of its front end; that the motorman stopped within about 5 or 6 feet after the collision.

Another witness for the defendant stated that he saw the driver of the automobile when the latter "was practically twenty-five or thirty feet south of the alley where the alley came out east into Oak Street. But he was gaining speed all the time. And I watched him, because of the fact that there was ice on the ground, and it seemed to me he was driving pretty careless as slick as it was. When he hit...