Vesper v. Ashton, 19043.

Citation118 S.W.2d 84
Decision Date07 March 1938
Docket NumberNo. 19043.,19043.
PartiesAURELIA VESPER, RESPONDENT, v. WILLIAM E. ASHTON, APPELLANT.
CourtCourt of Appeal of Missouri (US)

Appeal from Jackson Circuit Court. Hon. Darius A. Brown, Judge.

AFFIRMED.

Howell & Jacobs, Charles M. Howell, Jr. and Scott R. Timmons for respondent.

Cowgill & Popham and John F. Cook for appellant.

BLAND, J.

This is an action for damages for personal injuries. There was a verdict and judgment in favor of the plaintiff in the sum of $5000. Defendant has appealed.

The facts show that plaintiff was injured on the afternoon of September 13, 1934, while riding as a guest of the defendant in his automobile. Defendant and his wife were returning from a trip to the country, where they had purchased some grapes. Plaintiff was seated in the front seat of the car with defendant. The wife was in the rear seat. They were returning to the city by way of Highway No. 50, having turned north into Benton Boulevard, and were proceeding in a northwesterly direction on that street uphill, traveling about three feet from the east curb of the boulevard. The car was proceeding at the rate of about thirty miles per hour, when suddenly it turned west and went directly west across the pavement much faster than it had been going, the speed increasing to about fifty miles per hour. The car went over the west curb and over the parkway and stopped with the right side of the car, where plaintiff was sitting, against a tree twenty feet west of the curb. After the car struck the tree it stopped, with its front end projecting west beyond the tree. The boulevard was paved with macadam. It had been raining but the rain had ceased. The pavement was damp. However, there was no water, mud or oil on it. The boulevard was about forty feet wide between curbs. The curbing on either side was "square" curbing, that is perpendicular.

There was a parkway on the west side of the boulevard thirty or forty feet wide with trees growing thereon. Beyond the trees there was a deep hollow. There was no other car in the vicinity when the one in question started across the boulevard.

Plaintiff was the sole witness as to what happened at the time, there being no testimony on behalf of defendant.

She testified further that after the car struck the tree all she remembered was that some men picked her up and put her in an ambulance and she was taken to the General Hospital in Kansas City, where she remained a few hours, and was then taken to Research Hospital in said city, where she stayed six weeks; that during the entire time she was in bed she was required to lie on her back and was held "in position" by large sandbags placed at both sides; that she suffered a fracture of her left pelvis; that she suffered pains in her sides, back and abdomen, her right arm was severely cut and bruised and three scars were left on her arm; that the arm pained her for a year when another operation was performed and a piece of glass removed from it; that after leaving the hospital she visited her doctor on numerous occasions; that the doctor found that she had a dislocated kidney; that in December, 1935, a short time before the trial, she underwent an operation for the dislocated kidney.

On cross and re-cross examination she testified that she did not, at any time, make any protest or complain of defendant's driving, or see anything up to the time of the accident that was subject to criticism; that she always felt that defendant could have avoided the accident after the car started across the pavement; that she did not know what happened when the car turned west except that it increased in speed.

A written statement of the plaintiff was produced by the defendant. This statement was taken by some man who was not identified by any witness in the case and he did not testify. This man came out to the hospital, where plaintiff was located, and took the statement from her. In it she stated the car "skidded as if they had struck some mud on the pavement;" that the automobile was moving about twenty to twenty-five miles per hour when it first started skidding; that it was raining at the time and the pavement was wet and slick; that she could not tell for sure what caused the automobile to skid; that Mr. Ashton was a careful driver and that he was driving carefully at the time; that "I do not consider him to blame for this accident in any way whatever."

At the trial she testified that, although the statement was not in her handwriting, she had read it over when it was taken and had signed it but at that time she was not in condition to know what it contained; that she did not remember what she told the man; that the man wrote the statement; that she did not remember whether she told him that the defendant was a careful driver; that "He asked me questions, but I had no way of knowing what he was writing. Q. Well, did you tell him that Ashton (defendant) was a careful driver? A. Well, I suppose I did, if it is on that statement;" that she did not remember whether she told him or not; that so far as she knew, the defendant was a careful driver. "Q. And when you read this over and signed it, you were trying to tell, as best you could then, what you remembered, weren't you? A. Yes. Question: And you were in a condition at that time to know actually what it contained, although you glanced over it? A. No, I was not;" that she did not recall telling Mrs. Ashton that she didn't blame her husband (defendant) in any way. She testified that the statement was incorrect that it was untrue where it said that it was raining and that the pavement was wet and slick; that she would not say that the car skidded; that she did not know what happened; that the statement was incorrect in stating: "I do not consider him (defendant) to blame for this accident.

The case was submitted on plaintiff's Instruction Number 1 on the res ipsa loquitur theory. This instruction reads as follows:

"The court instructs the jury that if you find and believe from the evidence that, on the 13th day of September, 1934, the defendant was the owner of the automobile mentioned in the evidence, and that on said day said defendant was driving said automobile in a general northerly direction along and upon Benton Boulevard, in Kansas City, Jackson County, Missouri, and that at said time plaintiff Aurelia Vesper was riding in said automobile at the invitation of defendant, and that at all the times mentioned in the evidence defendant was in complete charge and control of said automobile, if you so find, and if you find that said highway was constructed of macadam about forty (40) feet in width and that said highway was then and there unobstructed and free from travel, if you so find, and that defendant caused and permitted said automobile to leave said pavement and go over the curb and collide with a tree several feet west of said highway, then you are instructed that from such facts (if you believe them to be true) you may infer that the defendant was negligent, and you may so find, unless you find and believe from the other facts and circumstances in evidence that the occurrence was not due to the defendant's negligence, and if you do find and believe from all of the evidence in the case that the defendant was negligent and that the plaintiff's injuries, if any, were directly caused by the defendant's negligence, then your verdict should be for the plaintiff."

It is insisted by the defendant that the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence; that there is no evidence tending to show that defendant was negligent and that under the facts in this case the res ipsa loquitur theory is not applicable.

Whether a host is liable to his guest, under the res ipsa loquitur theory, for injuries sustained by the latter as a result of the former's negligence in driving his car, depends upon the circumstances. "When an automobile and the operation thereof are exclusively with in a host's control, and it is not reasonably within the power of the injured guest to prove the cause of the accident, which is one not commonly incident to the operation of the automobile, the occurrence itself, although unexplained, is prima facie evidence of the host's negligence." [9 Blashfield, Cyc. of Auto. Law and Practice, pp. 320, 321.] We have no doubt but that that doctrine is applicable under the facts in this case. [Masten v. Cousins, 216 Ill. App. 268; Mackenzie v. Oakley, 94 N.J. Law, 66; Crooks v. White (Calif.), 290 Pac. 497; Godfrey v. Brown (Calif.), 29 Pac. (2d) 165; State v. Coolidge, 171 Atl. 244; Shea v. Hearn, 171 Atl. 248; Barger v. Chelpon (S.D.), 243 N.W. 97; Mackler v. Barnert, 49 S.W. (2d) 244; Heidt v. People's Motorbus Co., 9 S.W. (2d) 650; Berry on Automobiles (4 Ed.). sec. 610. See, also, Tabler v. Perry, 337 Mo. 154.]

Complaint is made of the giving of plaintiff's Instruction Number 1. It is claimed that it suggests to the jury that they may infer certain facts of negligence from a part or all of the evidence; that it amounted to an unwarranted comment on the evidence; that it singles out the evidence in the case and gives the jury the impression that such evidence is favorable to plaintiff and unfavorable to the defendant; that it separates that evidence "from the other facts and circumstances in evidence;" that it invites the jury to consider the evidence piecemeal and not as a whole in determining the issue of negligence; that it amounts to an argument in plaintiff's favor; that it is misleading to the jury with reference to the proper rule on the burden of proof: that it is erroneously misleading in that it is subject to the construction that defendant is required to furnish evidence and tends to obscure and destroy the right of the jury to find that defendant was not negligent from the specific facts set out in the instruction when, as a matter of fact and law, the jury had such right.

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