118 S.W.2d 84 (Mo.App. 1938), Vesper v. Ashton

Citation:118 S.W.2d 84, 233 Mo.App. 204
Opinion Judge:BLAND, J.
Attorney:Howell & Jacobs, Charles M. Howell, Jr. and Scott R. Timmons for respondent. Cowgill & Popham and John F. Cook for appellant.
Case Date:March 07, 1938
Court:Court of Appeals of Missouri

Page 84

118 S.W.2d 84 (Mo.App. 1938)

233 Mo.App. 204




Court of Appeals of Missouri, Kansas City

March 7, 1938

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

Judgment affirmed.

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

Cowgill & Popham and John F. Cook for appellant.


Page 85

[233 Mo.App. 205] 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

Page 86

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. [233 Mo.App. 206] 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 [233 Mo.App. 207] 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...

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