Opinion
No. 21695.
May 5, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, AT INDEPENDENCE, JOHN R. JAMES, J.
Charles L. Carr, Hale Houts, J. D. James, Hogsett, Trippe, Depping, Houts James, Kansas City, for appellant.
James Heron Coonce, Kansas City, for respondent.
This is a suit by a pedestrian for personal injuries sustained by him when struck by a streetcar operated by Kansas City Public Service Company, hereafter referred to as defendant, and by an automobile operated by a Mr. Salsbury. From a verdict and judgment for plaintiff against defendant, in the sum of $5,000, Kansas City Public Service Company appeals. Salsbury was discharged.
The casualty occurred at or near the intersection of 33rd and Troost, in Kansas City. Troost is a north-south street, 57 feet wide, and defendant maintains two sets of tracks in the center of the street, one for the northbound and the other for southbound traffic. Plaintiff was crossing Troost, from west to east, and had stopped at a point some 15 inches east of the east rail of the southbound car tracks when he was struck. The streetcar was proceeding southward at a speed variously estimated at from 4 to 15 miles per hour, and Salsbury's automobile was proceeding northward, along the northbound track, at a speed of 20 to 25 miles per hour. The distance between the 2 sets of tracks was 5 feet.
Plaintiff was standing in the pedestrian lane, looking toward the east and south, when he was struck by the overhang of the streetcar and propelled southeastward against the left rear fender of the automobile, thence southward to a point in the street between the 2 sets of car tracks, where he was found sitting, or lying on the pavement.
Plaintiff testified to the effect that he lived south of 33rd Street, in about the middle of the block, on the east side of Troost; that he had gone to the grocery store, located at the southwest corner of the intersection of 33rd and Troost; that he had purchased some groceries, which he carried in a sack, and started to cross Troost, going to his home, walking in the pedestrian lane on the south side of 33rd; that, before entering the intersection, he looked to the north and saw no streetcar, but saw automobiles coming; that he looked to the south and saw some automobiles approaching, the nearest being from 100 to 150 feet south; that he did not look to the north again, but walked to a point some 15 inches east of the east rail of the southbound car track and stopped; that he was watching the approach of the nearest automobile coming from the south (the Salsbury car); that while so standing, he heard the "swish" of a streetcar; that he turned his head and saw the streetcar; that he was struck in the back by the left front of the streetcar and hurled through the air against the left rear fender of the Salsbury car, the front of which was then slightly south of the crosswalk; that he was propelled further southward; that he came to rest from 30 to 40 feet south of the point where he was struck, and some 10 feet north of a launderette; that the sack of groceries was thrown still further south; that he was standing in the pedestrian lane when he was struck; that he heard no warning signalling the approach of the streetcar, or of the automobile; that when he stopped in the street the Salsbury car was about 75 feet south of him, traveling at a speed of 20 to 25 miles per hour, on the rails of the northbound track.
Plaintiff's main witness, Mrs. Strawn, lived at 3328 Troost, which was on the east side of the street. She testified to the effect that she worked, at that time, 3 doors north of 33rd, on the east side of Troost; that, as she walked toward her home, at lunch time, she observed plaintiff leave the grocery store; that she turned around (toward the north and west) to look at the traffic; that, just as she stepped off the curbing to cross 33rd, going south on the east side of Troost, she saw plaintiff step into the pedestrian traffic lane on the south side of 33rd, going eastward across Troost; that, when she reached a point 3 or 4 steps from the south curb of 33rd, plaintiff had stopped near the center of Troost; that she heard a streetcar approaching and saw it when it was about the length of a streetcar from plaintiff; that it had not then entered the intersection; that she thought it would strike him but was unable to do anything to avert the event; that when plaintiff stopped in the street the Salsbury car was proceeding northward and was beyond, or about opposite, a beer tavern, some 3 doors south of 33rd; that the streetcar did not slow down, nor was any warning given; that plaintiff was standing in the pedestrian lane when he was struck by the streetcar, some feet back of its front (the overhang at this point protrudes further out than the rounded front part of the streetcar); that the streetcar struck and knocked him into the rear fender of the automobile, and thence southward (but that he did not again strike the streetcar) to a point north of the launderette; that groceries were scattered southward from the pedestrian lane, a long distance, a loaf of bread being south of the launderette.
It was shown that the distance from the launderette to the south curb of 33rd was 66 feet; that 33rd was 36 feet wide; and that there was a streetcar "Stop" sign some 48 feet north of the north curb line of 33rd.
Mr. Salsbury's testimony, as given at the trial, varies considerably from that which he gave in police court. On direct examination he testified to the effect that, when he first saw the streetcar, it was north of 33rd; that, when he first saw plaintiff, he was standing in the street, 100 feet south of 33rd. He testified in police court that the streetcar was 200 feet north of witness when he first saw it. On cross-examination, in this trial, he stated that, as he then remembered, the streetcar was 30 to 35 feet from plaintiff when he first saw it. This testimony is especially significant in view of the undisputed fact that 33rd Street is 36 feet wide, so that, if he first saw the streetcar when it was north of 33rd and 30 to 35 feet north of plaintiff, then plaintiff could not then have been 100 feet, or any other distance, south of the pedestrian lane. The witness also admitted that he testified in police court that plaintiff was standing, looking toward his car and not toward the streetcar. He stated that defendant's operator was looking toward the west as the streetcar bore down on plaintiff; that the streetcar struck plaintiff and threw him southward against the fender of Salsbury's car, thence southward onto the street.
Mr. Lindsey, called by Salsbury, testified to the effect that he was sitting in his car, which was stopped, several cars behind the Salsbury car, when he saw the streetcar; that it was stopped, north of 33rd; that he did not, at that time, see plaintiff; that when he first saw plaintiff he was standing in the street some distance north of the launderette, but about 100 feet south of 33rd; that the streetcar was then approaching plaintiff, it then being some 8 feet north of him; that plaintiff was looking to the east and defendant's operator was looking to the west; that witness' eyes traveled from one to the other as the streetcar approached plaintiff, and that the operator never turned his head in plaintiff's discretion; that he thought that plaintiff would be struck; that plaintiff was hurled southward from 5 to 15 feet after the collision, finally coming to rest on the pavement, west of the launderette.
Mr. Laughlin, defendant's operator, testified to the effect that he made a stop north of 33rd; that he first saw plaintiff when he came out from between some parked automobiles, at a point about 100 feet south of 33rd; that he observed him until he stopped east of the east rail of the track upon which his car was traveling; that plaintiff looked toward the streetcar; that the streetcar was proceeding at a speed of about 4 miles per hour; that witness was, at all times, aware of plaintiff's location and alert to his possible danger; that he had the streetcar under control; and that there was sufficient space for it to pass safely. There were many discrepancies in testimony given by him at a police court hearing and that given at this trial.
Mrs. McIlrath, a passenger on the streetcar, was seated on the left side near the point of impact. She state that when she first saw plaintiff he was standing in the street, about 60 feet south of 33rd, looking east; that after the front of the car passed him he put out his hand to the streetcar and was propelled around and out of her sight. She did not remember if the streetcar stopped at 33rd Street.
Mr. Thomas, a policeman, stated that he found a sack of broken eggs 89 feet south of the crosswalk.
Defendant contends that error was committed by the giving of plaintiff's main instruction. That instruction directed a verdict for plaintiff if the jury should find that defendant's motorman failed to keep a lookout and to slacken speed, if said failure was negligence and caused or contributed to cause plaintiff's injuries. It is charged that there was no evidence tending to prove that such negligence, if any, was the proximate cause of the casualty.
Said instruction is as follows:
"The court instructs the jury that if you believe and find from all the evidence in this case that on or about the 10th day of July, 1948, the plaintiff was walking east across Troost Avenue in the pedestrian lane on the south side of Thirty-third Street, in Kansas City, Jackson County, Missouri, if you so find; and was in the exercise of ordinary care for his own safety, if you so find; and that said streets were public streets and thoroughfares open to public travel in said city, if you so find; and that at that time the defendant Kansas City Public Service Company acting by and through one of its streetcar operators, was operating one of its streetcars south on said Troost Avenue and was approaching its said intersection with said Thirty-third Street, if you find such to be the facts; and that at that time the defendant, William D. Salsbury, was driving and operating an automobile north on said Troost Avenue near the center of said Troost Avenue and was approaching its said intersection with Thirty-third Street, if you so find; and that plaintiff stopped and remained standing near the center of said Troost Avenue to let said automobile pass him and proceed north on said Street, if you so find; and that plaintiff was then in front of said streetcar and in danger of being run into and struck thereby, if you so find; and that the defendant acting through the operator of its said streetcar failed to keep a reasonable and proper lookout for plaintiff and other pedestrians using said crosswalk, if you so find; and that in so failing, said defendant was negligent, if you so find; and that said operator acting as aforesaid failed to slacken the speed of said streetcar, if you so find; and that in so failing, said operator was negligent, if you so find; and that said streetcar struck plaintiff and knocked him into the left rear fender of said northbound automobile, if you so find; and that plaintiff was thereby injured, if you so find; and that the negligence of said streetcar operator, as submitted in this instruction, caused or contributed to cause plaintiff to be struck and injured as aforesaid, if you so find; then your verdict should be for the plaintiff and against the defendant, Kansas City Public Service Company."
The above-mentioned issues of negligence were set out in the conjunctive. If one was properly submitted there was no error in the instruction even if the facts submitted in connection with the other issue were not full enough to establish a right of recovery. Wolfson v. Baltimore Bank, Mo.App., 157 S.W.2d 560, 566.
Plaintiff's testimony was to the effect that he started across the street and "paused" near the center to permit the Salsbury automobile, approaching from the south, to pass before he proceeded further. The streetcar approached plaintiff from the north at about the same time that the Salsbury car approached from the south, and he was struck by the streetcar and thrown against the automobile. The streetcar was traveling at a speed of 15 miles per hour and the Salsbury car was traveling at a speed of 20 or 25 miles per hour. There was evidence that the cars behind the Salsbury car were stopped and stationary at the time of, or shortly prior to, the occurrence of the accident. From the above evidence the jury could have found that, had the speed of the streetcar been slackened, the Salsbury car would have passed plaintiff before the streetcar arrived at the point where he stood, and that plaintiff, the way clear of approaching traffic, would have continued across the street and out of danger. There was also testimony to the effect that the streetcar had stopped north of 33rd, some 84 feet from the point where plaintiff and Mrs. Strawn stated that plaintiff was standing; that it was stopped while plaintiff stood looking toward the Salsbury automobile and while the automobiles south of the Salsbury car were stationary. Of course the evidence was somewhat conflicting in many respects, and not entirely clear, but the jury could have found the facts to be as above stated. In view of the state of the evidence we may not hold that the instruction was erroneous in permitting a finding of negligence for failure to slacken speed.
There was also substantial evidence of failure to keep a lookout. Two witnesses testified to the effect that defendant's operator was looking toward the west when the streetcar was 25 feet north of plaintiff, and when it was 8 feet from him. The inference is strong, from the testimony, that the operator did not, from a point 25 feet north of plaintiff, look in his direction. Failure to keep a lookout is negligence. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, 693. Lanio v. Kansas City Public Service Company, Mo., 162 S.W.2d 862, 866; Fortner v. St. Louis Public Service Company, Mo., 244 S.W.2d 10, 14.
The instruction did not give the jury a roving commission to find negligence on some vague, indefinite theory of its own. The instruction required a finding of sufficient facts to guide the jury in determining the question submitted. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, 543, is not applicable in this case. The instruction differs from that condemned in the case of Ferdente v. St. Louis Public Service Company, Mo., 247 S.W.2d 773. Here, pertinent facts are set out in the instruction and it is required that the jury find said facts from the evidence before it is permitted to find for plaintiff. The entire factual situation is covered in the instruction, which was not true in the case of Perdente v. St. Louis Public Service Company, supra.
Defendant contends that plaintiff was guilty of contributory negligence, as a matter of law, in going into the street, and standing where he would be struck when he could have seen the streetcar approaching. In discussing this contention we must bear in mind that, according to plaintiff's theory and evidence, the streetcar was north of 33rd when he entered the crosswalk, although he said he did not see it. There was no automobile near on the west half of the street and none on the east closer than the Salsbury car, which was then from 100 to 150 feet south of the crosswalk. When he reached the center of the street the Salsbury car was 75 feet feet south, coming at a speed of from 20 to 25 miles per hour. Even then, according to the testimony of Mrs. Strawn, the streetcar was north of 33rd, which was 36 feet wide. We cannot hold that all reasonable minds must agree that plaintiff was negligent in attempting to cross the street, or in stopping to permit the Salsbury car to pass before stepping into the northbound traffic lane. Ritzheimer v. Marshall, Mo. App., 168 S.W.2d 159, 165; Graves v. Missouri Pacific Ry. Co., 342 Mo. 542, 118 S.W.2d 787, 791; Perdente v. St. Louis Public Service Company, supra. So far as plaintiff's conduct is concerned, the way was reasonably safe when he entered the crosswalk. He was not required to anticipate negligence on the part of the streetcar operator, entailing injury to plaintiff. Hathaway v. Evans, Mo.App., 235 S.W.2d 407, 411. He was in the crosswalk where, as a pedestrian, he had a right to be; and he was standing there, according to the testimony of Mrs. Strawn, before the streetcar entered the intersection. From the evidence it could be inferred that he would move out of that position as soon as the Salsbury car passed in front of him; and it was traveling at 20 to 25 miles per hour. There is no evidence tending to prove that he was in danger from other cars, and none tending to prove that he was aware of the approach of the streetcar, probably because his attention was centered on the Salsbury car.
It is also contended that instruction 1 excluded from the jury's consideration the defense that plaintiff, in the exercise of ordinary care, could have changed his position in time to have avoided injury; that it confined plaintiff's duty to exercise ordinary care only while walking east across the street. It is claimed that this constituted misdirection. Contributory negligence is an affirmative defense which, in this case, was submitted under defendant's instruction C. Plaintiff's instruction authorized a verdict on his theory of the case and it was not required that it refer to plaintiff's contributory negligence where such defense was submitted in a separate instruction. Underwood v. Metropolitan St. Ry. Co., 125 Mo.App. 490, 493, 494, 102 S.W. 1045. In the instant case, it is also clear from the evidence that plaintiff merely paused, in the act of crossing the street, to permit the Salsbury car to pass; and the instruction is so worded as to require a finding to the effect that plaintiff was, at all times during his passage across the street, including the time during which he paused, in the exercise of ordinary care. Such, we think, is the fair meaning of the instruction, as worded. There is no evidence tending to prove that plaintiff was in danger until, in the process of crossing the street, he reached the point where he stopped or, as plaintiff stated, "paused," to permit the Salsbury car to pass. The jury was not misdirected and could not have been misled. It is misdirection that is criticised in State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351, 355, and State ex rel. Powell Bros. Truck Lines, Inc., v. Hostetter, 345 Mo. 915, 137 S.W.2d 461, 463, cited and relied on by defendant.
Defendant offered, and it was refused, instruction F, as follows:
"The court instructs the jury that if you find and believe from the evidence that the plaintiff was attempting to cross Troost Avenue at the time mentioned in evidence at a place other than the pedestrian crosswalk, then your verdict must be against the plaintiff as to the defendant Kansas City Public Service Company, and in favor of the Kansas City Public Service Company."
The instruction does not purport to cover the entire case and hypothesize the facts upon which defendant relied for a judgment in its favor. It offered no such instruction, although it could have done so. Instruction F is merely an abstract declaration of law covering one phase of the case and, at most, it is but the negative of a part of plaintiff's instruction 1. Consequently, it was not error for the court to refuse to give it. Counts v. Coca-Cola Bottling Company, Mo.App., 149 S.W.2d 418, 423; Humphreys v. Chicago M. St. P. R. Co., Mo.App., 83 S.W.2d 586, 587, 591. This ruling is not in conflict with that in Randolph v. Supreme Liberty Life Insurance Company, 359 Mo. 251, 221 S.W.2d 155.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.