Williams v. Kansas City

• Decision Date: 18 June 1915
• Docket Number: No. 11609.,11609.
• Citation: 177 S.W. 783
• Parties: WILLIAMS v. KANSAS CITY.
• Court: Missouri Court of Appeals

177 S.W. 783

WILLIAMS v. KANSAS CITY.

No. 11609.

Kansas City Court of Appeals, Missouri.

June 18, 1915.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Harold J. Williams, a minor, by D. M. Pinkerton, his next friend, against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

A. F. Evans, O. C. Mosman, Hunt C. Moore, and A. F. Smith, all of Kansas City, for appellant. McCune, Harding, Brown & Murphy, of Kansas City, for respondent.

TRIMBLE, J.

This suit is for the death of Joseph Williams, alleged to have been negligently caused by a servant of the defendant in the operation of an automobile on the streets of the city while acting in the scope of his employment as chief inspector of the waterworks department owned and operated by the city for the purpose of supplying its inhabitants with water for compensation. The deceased was unmarried, being a widower, and the plaintiff is a minor and his only child.

Deceased, while riding a motorcycle, was struck and killed by the city waterworks car driven by the chief inspector, who was on his way to a water customer of the city to examine the service on account of excessive bills which the customer was being charged. The collision occurred a few feet east of the intersection of Linwood boulevard and Brooklyn avenue. The former runs east and west, and the latter north and south. The servant of the city was traveling east on Linwood, and, as he was about to cross Brooklyn avenue, his hat blew off and rolled to the north side of the boulevard. There were two street car tracks in the avenue, and, for fear that he would "kill" his engine and stop on these tracks, the city employée did not attempt to stop immediately, but allowed his car to cross the tracks and continue on the boulevard past the intersection of the avenue, until it came to a stop with the front of his car close to the curb on the south side. His hat was northwest of him at this time on the north side of the boulevard and a few feet west of the street intersection. Instead of getting out of his car and walking back for his hat, he reversed his engine, and, looking at his hat over his left shoulder, started to back his car rapidly to the northwest. Deceased was coming north on the avenue and turned east on the boulevard going in a northeast direction to make the turn at the time the city employée was backing his car northwest, thus causing the two machines to reach the same point at the same time, resulting in a collision that threw deceased off his machine and killed him.

The evidence for plaintiff tends to show that the automobile was traveling east and was suddenly, and without warning or signal of any kind, reversed and backed diagonally in the street and into the motorcycle; that deceased when struck rolled to the northwest; that the motorcycle, in turning east on the boulevard, was on the proper, that is, the south, side of the street, while the automobile was on the wrong side, for it to be going west, although on the proper side if going east. The two streets are both important streets of the city and much traveled. Deceased, in turning east on the boulevard, had a right to expect that every vehicle on the south side of the street would be going east; and when he turned the corner and discovered too late that, instead of going east, the automobile was backing rapidly to the northwest, he should not be charged with contributory negligence as matter of law, even if, when confronted with this sudden and dangerous situation, he attempted to avoid the collision and unfortunately failed to do so. The law imposed upon the automobile driver the duty of exercising the highest degree of care of a very careful person, and it was his negligence in suddenly backing the car that produced a dangerous and unexpected situation which suddenly confronted the deceased; and, even if the latter could be said to have erred in judgment as to the best way to avoid the danger, it was not his negligence that brought about the situation, but that of the city employée. Hence deceased cannot be charged with contributory negligence as matter of law. The question was clearly one for the jury to pass upon.

At the time the trial commenced, the Petition, while it alleged that the automobile was being operated by an agent and employée of the city acting in the scope of his employment as inspector of defendant's waterworks department, did not contain any statement that the employée was engaged in a duty incidental to the sale of water. Defendant contends that the water plant is also operated for public purposes, i. e., fire protection and the sprinkling of streets, and that in accomplishing these two purposes the city acts in its governmental capacity, rather tan in its corporate or business capacity. Hence it contends that the petition did not state a cause of action. There was no demurrer or other assault made upon the petition in any way, and before the trial was finished, or the cause submitted, plaintiff asked and obtained leave to amend, and did amend, the petition by interlineation, adding, to the statement that defendant was a municipal corporation, the words "owning and operating a system of waterworks to supply its inhabitants with water for compensation." If the petition, before this amendment was added, did not specify whether the city, in maintaining its waterworks, was acting it its ministerial capacity or was performing a governmental duty, certainly the interlineation of the above allegation was the statement of a fact from which follows the necessary legal conclusion that the city was acting in its corporate or business capacity and not in the performance of a governmental duty. Henderson v. Kansas City, 177 Mo. 477, 76 S. W. 1045; Dammann v. St. Louis, 152 Mo. 186, 53 S. W. 932; Thurston v. St. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Hannon v. County, 62 Mo. 313; Bullmaster v. St. Joseph, 70 Mo. App. 60; State ex rel. v. Gates, 190 Mo. 540, loc. cit. 558, 89 S. W. 881, 2 R. A. (N. S.) 152; Rice v. St. Louis, 165 Mo. 636, 65 S....