Steele v. Thomas

• Citation: 101 S.W.2d 499,231 Mo.App. 865
• Parties: J. C. STEELE, RESPONDENT, v. ROBERT THOMAS, APPELLANT
• Decision Date: 02 February 1937
• Court: Court of Appeal of Missouri (US)

101 S.W.2d 499

231 Mo.App. 865

J. C. STEELE, RESPONDENT, v. ROBERT THOMAS, APPELLANT

Court of Appeals of Missouri, St. Louis

February 2, 1937

Appeal from the Circuit Court of Clark County.--Hon. Walter A Higbee, Judge.

AFFIRMED AND REMANDED.

Order affirmed and cause remanded.

Hiller & Hiller and Rendlen, White & Rendlen for appellant.

(1) Plaintiff, respondent, failed to introduce evidence in proof of the allegations of the petition that Kleinert, the driver of the Ford truck, was at the time and place of the accident in the employ of the defendant, and acting within the scope of his employment. This was one of the direct issues raised by the pleadings. Plaintiff, having failed to discharge this burden, is not entitled to recover in any event, and granting of a new trial by the court was error. Byrnes v. Poplar Bluff Prtg. Co., 74 S.W.2d 20 (Mo. Sup. 1934); Calhoon v. D. C. & E. Mining Co., 209 S.W. 318. (2) The exclusion by the court of the evidence offered by witness LaFever, when he was recalled (Abstract 25) as to the distance within which the Model T Ford truck, being driven by Kleinert, could be stopped was not error, or if it was, it is harmless, for the reason that had it been admitted, it would have been only cumulative, the same or similar evidence having been received from Allen Wood and Hugh Hardy (Abstract 26 and 27). Further, it invades the province of jury. The question was not within what distance such a car be stopped but this particular car that witness had never operated, or seen before. Moreover, upon the exclusion of said evidence no profert was made by the plaintiff. If there was any error it is harmless. Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47; Elstroth v Karrenbrock, 285 S.W. 525 (St. L. Ct. App.). (3) The alleged exclusion of evidence and the failure of the court to submit certain issues to the jury (sustaining of demurrer) was not error, since plaintiff was not entitled to recover, in any event. Taylor v. K. C. Terminal Ry. Co., 240 S.W. 273 Mo. 1; 200 S.W. 286; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286.

J. L. Gutting and J. D. Brown for respondent.

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.--

This is an action to recover damages resulting to plaintiff on account of personal injuries sustained by his minor son, Donald Steele, when struck by defendant's Model T Ford motortruck.

The petition charges that the defendant negligently failed to operate said motortruck in a careful and prudent manner, and negligently failed to exercise the highest degree of care while operating said motortruck so as not to endanger the life and limb of any person on the highway; that defendant negligently failed to give or sound any warning signal, or negligently failed to provide the truck with a horn or other signalling device; and that said defendant negligently failed to stop or slacken the speed of said truck, or negligently failed to provide the truck with proper and adequate brakes as provided by law.

The cause was tried to a jury. At the conclusion of plaintiff's case in chief, the court gave an instruction directing the jury to find for defendant. The jury so found, and judgment was given accordingly. From the order of the court granting plaintiff a new trial, defendant appeals.

The order granting a new trial does not show the ground on which a new trial was granted, but it was obviously granted on the ground of error in the giving of the instruction directing a verdict for defendant.

Defendant contends here that the giving of such instruction was proper (1) because there was no evidence to show that one Kleinert, who was driving the truck at the time of the accident, was at that time in the employ of defendant and acting within the scope of his employment, and (2) because the evidence fails to show any negligence on the part of defendant or the driver, resulting in the injury complained of.

The evidence shows that the accident occurred on U.S. Highway 61, in Clark County, just south of the Iowa line, on Sunday, April 30, 1933, between three and four o'clock in the afternoon. The truck was traveling south on the west side of the pavement, which was sixteen feet wide. An automobile, driven by Leo C. LaFever, was traveling north on the east side of the pavement. Plaintiff's son Donald, six years old, and his brothers, Joe, thirteen years old, and Harold, nine years old, were walking south on the dirt shoulder west of the pavement. They were returning to their home in Alexandria from Keokuk where they had visited their sister. As they walked along the dirt shoulder on their way home the two older boys engaged in throwing rocks at the fences. Donald, having a cornstalk in his hand, amused himself by running across the pavement and striking at passing automobiles with the cornstalk. As defendant's truck approached the point where Donald was struck he ran across the pavement in front of the truck, struck at the LaFever automobile as it passed going north, and then ran back across the pavement, and had reached a point on the pavement about a foot from the west edge of the pavement when he was struck by the right front fender of the truck. There was testimony that the truck was twenty-five feet away from Donald when he first stepped onto the pavement in running across the pavement to strike at the LaFever automobile, and that the truck was at that time running at a speed of fifteen to twenty miles per hour, and could have been stopped, running at that speed, if equipped with adequate brakes, in a distance of ten to fifteen feet.

Defendant owned and operated a beer place on U.S. Highway 61 between Keokuk and Alexandria. The accident occurred on this highway between the beer place and Alexandria.

Defendant in his answer admits his ownership of the truck, but alleges that at the time of the accident Kleinert, who was driving the truck, was not in the employ of defenda...