Woods v. Kansas City Light & Power Co.

• Decision Date: 05 May 1919
• Docket Number: No. 13243.,13243.
• Citation: 212 S.W. 899
• Parties: WOODS v. KANSAS CITY LIGHT & POWER CO.
• Court: Missouri Court of Appeals

212 S.W. 899

WOODS v. KANSAS CITY LIGHT & POWER CO.

No. 13243.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Lew G. Woods against the Kansas City Light & Power Company. Verdict and judgment for plaintiff, and defendant appeals. Judgment reversed and remanded unless plaintiff within ten days remit the sum of $500, in which case the judgment will be affirmed.

William C. Lucas and John H. Lucas, both of Kansas City, for appellant.

Harry Friedberg and Atwood, Wickersham. Hill & Popham, all of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $7,500 on account of damages for personal injuries alleged to have been sustained by reason of the negligence of defendant's servant. The accident happened about 8 p. m. of February 12, 1917, at the intersection of Twelfth street and Troost avenue, in Kansas City, Mo. Plaintiff, a man 60 years of age, was walking west on the north sidewalk of Twelfth street, and, while proceeding across Troost avenue in a line with said sidewalk, he was struck at a point about the middle of said street by one of defendant's servants riding a motor" cycle northward.

The grounds of negligence alleged in the petition are: (1) Failure on the part of the driver of the motorcycle to slow down or bring his motorcycle to a stop before passing a standing street car; (2) violation of the rule of the road requiring the operation of a motorcycle on the right or east side of Troost avenue, and alleging that the same was being operated on the west side; (3) violation of the ordinance of Kansas City fixing the rate of speed that a motorcycle might be driven at the place in question at 10 miles per hour; (4) operating a motorcycle over the intersection of Twelfth street and Troost avenue at "a negligent and dangerous rate of speed and without having and keeping the same under reasonable control"; (5) failure of defendant's servant "to sound a reasonably sufficient warning of the approach of said motorcycle to said intersection" and failure "to keep a reasonably sufficient lookout ahead of the same as it approached and passed over said intersection"; (6) facts constituting a last chance case.

Plaintiff submitted his case to the jury on the following acts of negligence, contained in his instruction No. P-1. In that instruction the court told the jury that it was the duty of defendant's servant—

"* * * to operate said motorcycle at a reasonable rate of speed, having regard to the traffic and use of said streets, and to keep a reasonably careful lookout ahead of said motorcycle upon said street, and to give reasonable and timely warning of the approach of said motorcycle to said intersection; and if the jury find and believe from the evidence that the operator of said motorcycle at the time and place referred to negligently, if you so find, failed to perform any one or more of the duties above enumerated, and at the time and place above referred to ran said motorcycle against plaintiff, if you so find, and that plaintiff was thereby injured, if you so find, and that such collision and injury, if any, resulted directly from the negligence, if any, as above set out and as defined in these instructions, on the part of the operator of said motorcycle, and that plaintiff at said time was exercising ordinary care for his own safety, then the plaintiff is entitled to recover against defendant, and your verdict will be for the plaintiff."

Defendant's first point is that its demurrer to the evidence should have been sustained; it being the contention that there is no evidence to support the allegations of the petition. Taken in its most favorable light to plaintiff, the evidence shows that at the time of the collision it was dark at the intersection of said streets; the street and store lights being out. There was no light present except that made by the headlights of two street cars, one standing a few feet north of Twelfth street and south-bound on Troost avenue, and one a few feet south of Twelfth street, north-bound on said avenue. At the time plaintiff started across the street he looked in both directions on Troost avenue and saw nothing approaching; the motorcycle being without any lights. Plaintiff's eyesight and hearing were good. He heard the pop-pop of the motorcycle at a distance, but thought that it was going in another direction. When he approached a point a little to the west of the center of Troost avenue and nearly in front of the standing south-bound street car the motorcycle struck him, and he was knocked unconscious. No warning was given plaintiff of the approach of the motorcycle. There was no horn or signal device on it.

The evidence shows that the motorcycle approached Twelfth street at a speed from 35 to 40 miles per hour, and at a point 15 to 20 feet south of that street the driver shut off the power of his machine and coasted from there to the place of collision. From the time the motorcycle reached the south side of Twelfth street to the point of collision it ran silently. The rate of speed of the motorcycle from the intersection to the point of collision was about 30 miles per hour. The motorcycle proceeded north on Troost avenue toward Twelfth street, then swerved to the left in order to go around the left or west side of the north-bound car. It then cut to the east side of Troost avenue, and just before striking plaintiff swerved again to the west of the center line of Troost avenue, where the collision took place. The impact caused the motorcycle and plaintiff to slide about 15 feet. After the collision the motorcycle was found under the south-bound street car.

The driver of the motorcycle testified that on account of the darkness he did not see plaintiff until he was 6 or 8 feet from him. At that time plaintiff seemed to hesitate in the driver's path, and when plaintiff so hesitated the driver swerved to the left, thinking to pass around plaintiff, but the latter continued forward to a place in front of the motorcycle. At another point in his testimony the driver stated that he did not attempt to stop the motorcycle until he reached a point about 10 feet from plaintiff; that being the first time he saw the plaintiff. Plaintiff's witness Sprague testified that he was 40 feet north of Twelfth street on the west side of Troost avenue, and that he saw what happened. It was therefore evidently light enough for the driver of the motorcycle to have seen plaintiff for a greater distance than that he testified he was away from plaintiff at the time he made an effort to stop the motorcycle. At the speed at which he was going, the driver of the motorcycle could not stop it in less than 30 feet. The driver testified that, if he had gone to the right instead of to the left, he would have missed plaintiff. A witness for the plaintiff testified that "this motorcycle seemed to dash without any warning; didn't give any signal at all or blow his horn; just crashed into him; didn't attempt to stop." There was no obstruction between the driver of the motorcycle and plaintiff after the driver started to cross Twelfth street. Plaintiff testified that in his judgment Troost avenue was 60 feet in width.

The driver of the motorcycle was employed by the defendant to correct defects occurring to defendant's electric system. He was on his way to correct one of these defects at the time of the collision. He testified that trouble calls were necessarily answered as hastily as possible, and that he was in haste at the time.

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