Woods v. Moffitt

• Decision Date: 26 January 1931
• Docket Number: No. 16759.,16759.
• Citation: 38 S.W.2d 525
• Court: Missouri Court of Appeals
• Parties: STELLA WOODS, ADMX., RESPONDENT, v. GEORGE W. MOFFITT, APPELLANT.

38 S.W.2d 525

STELLA WOODS, ADMX., RESPONDENT, v. GEORGE W. MOFFITT, APPELLANT.

No. 16759.

Kansas City Court of Appeals. Missouri.

January 26, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

AFFIRMED.

Trusty & Pugh for respondent.

Henning & Baker and John D. Wendorff for appellant.

BOYER, C.

R.W. Woods instituted an action against defendant to recover for personal injuries caused by an automobile driven by defendant. Plaintiff had judgment in the sum of $6500 and defendant duly appealed. After the case reached this court plaintiff died and the name of Stella Woods, administratrix of his estate was substituted as respondent; hence the above title of the cause.

The petition states that on January 12, 1927, "while the plaintiff was walking southward on a trafficway known as Beardsley road and about 100 feet north of the Twelfth street viaduct, both public thoroughfares in Kansas City, Missouri, and while he was on the west side of said trafficway walking southward, an automobile being then and there operated at said place by the defendant negligently ran into and against the plaintiff severely injurying him." It is also charged that defendant negligently operated the car at a high and dangerous rate of speed; failed to have it under reasonable control; failed to exercise the degree of care required by law; failed to keep a lookout for pedestrians; failed to have the car equipped with a horn or signal device; failed to give warning, and failed to exercise the highest degree of care in the operation of said vehicle.

Following these statements are three paragraphs numbered 9, 10, and 11, as follows:

"9. Plaintiff was not aware of the approach of said automobile until too late to escape being struck and the defendant by the exercise of due care could have seen said collision was about to occur in time, by the exercise of due care, to have stopped said automobile or sufficiently reduced its speed, or changed its course, or to have warned plaintiff of its approach, and by so doing it could have avoided said collision with the plaintiff and avoided injuring the plaintiff, and defendant negligently failed to exercise such care and such failure helped to cause and caused said collision and injury to plaintiff.

"10. Defendant was further guilty of negligence in that it was dark and raining and late at night and his automobile was not equipped with any or sufficient headlights by which to operate said automobile.

"11. He was further guilty of negligence in maintaining said automobile in such condition when he was unable to see where he was going and said condition directly caused the collision with the plaintiff and the subsequent injury.

Another charge of negligence followed the above and it is then alleged that all the negligent acts and omissions of defendant operated to cause the collision and plaintiff's injury.

The answer is a general denial of the petition; a specific denial of negligence on the part of defendant; a charge of contributory negligence on the part of plaintiff, and further averments in these words:

"This defendant avers the fact to be that said plaintiff was negligent and careless in failing to observe the position he occupied upon said highway at the time and place mentioned in plaintiff's first amended petition, and in failing to have and maintain a proper lookout and due regard for the traffic upon said trafficway at said time and place... . Defendant avers the fact to be that said plaintiff was negligent and careless in all that he did relative to going upon said trafficway at the time and place mentioned in plaintiff's first amended petition, and in failing to have and maintain a proper lookout and have due regard for the traffic upon said trafficway at said time and place."

The reply was a general denial. The court denied defendant's request for a peremptory instruction at the close of plaintiff's evidence. Defendant offered proof, and at the close of all the evidence defendant requested the following instruction:

"The court instructs the jury at the close of all the evidence that under the pleadings and the evidence in this case plaintiff is not entitled to recover and your verdict must be for the defendant."

This was denied. Instructions were requested by both sides and were given by the court submitting the case to the jury upon the humanitarian theory only. The errors urged are (1) that the demurrer to the evidence should have been sustained, (2) that the petition fails to state any cause of action, (3) that the evidence was insufficient to bring the case within the humanitarian rule, (4) that improper testimony was admitted, and (5) that plaintiff's instructions A, C, and D, are erroneous.

The facts: Plaintiff was injured January 12, 1927, about the hour of six P.M. He had been employed in the industrial district in Kansas City known as the west bottoms, between which place and the uptown district is a long and precipitous bluff extending generally from north to south. On the west side of the bluff are certain public highways for vehicular traffic, one of which is designed as Beardsley road. It extends from Fifth street southwardly to Seventeenth street; the roadway of Twelfth street is carried over Beardsley road upon a viaduct; there are no other intersecting streets or highways. Plaintiff's evidence is to the effect that he started home from his place of work about six o'clock P.M., walked up Eighth street from which he entered Beardsley road, and continued southwardly near the west edge thereof for a distance of approximately 2000 feet, and to a place about 150 to 200 feet north of Twelfth street. At the last mentioned place and in that vicinity there was upon the west side of Beardsley road a concrete balustrade; plaintiff says that he was walking "just about as close to the railing as a man could walk;" that he did not know that the car was near him until he was hit; that there was no warning; that he saw no lights from the car; that he did not know anything about the automobile except that it hit him; that he was going south and looking south, about 150 feet from the Twelfth street viaduct; that there were lights on the Twelfth street viaduct; that he did not know what struck him; he was immediately rendered unconscious and remained so for a long period of time.

Defendant testified that he left his work in Kansas City, Kansas, about 5:30 P.M., drove over intercity viaduct, entered Beardsley road, traveled southwardly thereon, and arrived at the place of collision in a Dodge automobile about fifteen minutes thereafter; it was dark and drizzling rain; the headlights of his car were in good condition and he could see the railing to the right and in front for a distance of 100 feet, beginning at a point eight or ten feet in front of the car, but he could not see the railing back of that point; that when he reached a point within 150 or 200 feet north of the Twelfth street viaduct, "something like paper or something, hit the front of my windshield. I studied what it was. I thought it was somebody threw a grip from the viaduct above as the street car went by. I stopped my car, and I went back to see what it was, and I found a man lying on the pavement with his feet toward the railing and his head out this way." He further said that the man's feet were about two or two and one-half feet from the railing and closer than his head. He had previously testified in his deposition in these words: "All I saw was a drop like that (indicating), and a hand hit my windshield; and I thought, what in the world is it, and he must have hit the side of my car, sat down on the running board of my car; that naturally rolled him over, then I went along, and I thought, the Twelfth street bridge." Defendant's evidence further shows that Gee, what was that, and I thought somebody threw something off he had entered Beardsley road and was traveling southwardly at a moderate rate of speed and at the time of the collision was within about six feet of the west railing; that no one was in the road; that if any one had been there he could have seen him for a distance of 100 feet; that he could stop his car within six feet; that when he stopped his car he walked back twenty or thirty feet where the man was lying; that there was no one ahead of him before the collision; that pedestrians were accustomed to use Beardsley road; that he expected to find them on the road; that he was driving about eight miles per hour; that he could have seen plaintiff 100 feet ahead if plaintiff had been walking on the highway; that he did not sound his horn; that he asked the first man who came along to call the police who arrived in about twenty or twenty-five minutes after the collision, and that the ambulance arrived about an hour after the collision and took the man away.

It was defendant's position at the trial that plaintiff came up a path from the bottoms leading to Beardsley road and thence over the balustrade and appeared in front or to the side of defendant's car so suddenly that defendant had no opportunity to avoid striking him. The evidence tends to show that there is a well-defined path leading up the bluff on the west side of Beardsley road and to it about 250 feet north of the Twelfth street viaduct; and that on the east side of Beardsley road, about sixty-five feet south of where the path from the west meets the highway, there is a catch basin from which point there is a well-defined path leading eastward and upward to the top of the hill. Pedestrians going to and from the west bottoms to the uptown district walk along said path, climb over the railing on the west side of Beardsley road, cross the highway in a southeasterly direction to the catch basin, and then continue along the path up the hill. Plaintiff said he knew nothing about the path and never used it. Other reference will be made to the evidence when appropriate in the course of the opinion.

OPINION.

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