Alley v. Wall

• Decision Date: 02 June 1925
• Docket Number: No. 18945.,18945.
• Citation: Alley v. Wall, 272 S.W. 999 (Mo. App. 1925)
• Parties: ALLEY v. WALL.
• Court: Missouri Court of Appeals

272 S.W. 999

ALLEY v.WALL.

No. 18945.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Appeal from Circuit Court, St. Louis, County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Marie Alley against Olivia Wall. judgment for plaintiff, and defendant appeals.Affirmed.

F. H. Blades and A. E. L. Gardner, both of St. Louis, for appellant.

W. H. Guest, R. S. Harbison, and John A. Nolan, all of St. Louis, for respondent.

BRUERE, C.

This is an action for damages on account of personal injuries sustained by the plaintiff while riding in defendant's automobile, as her guest, caused by the alleged negligence of the defendant.The case was tried before the court and a jury, and, from a judgment in favor of the plaintiff for $1,500, the defendant has appealed.

The charging part of the petition is as follows:

"That plaintiff was riding in an automobile of the type commonly known as a sedan, belonging to and being operated by the defendant; that plaintiff was then and there a passenger in said automobile at the invitation of the defendant and sitting on the right side of the rear seat of said automobile and exercising due care for her own safety; that at the time aforesaid said automobile was proceeding southwardly along the central portion of Dougherty Ferry road, a public highway in the county of St. Louis and state of Missouri, and had reached a point in said road north of Valley Park when the defendant, without warning, and for causes and reasons to plaintiff wholly unknown, and which plaintiff has been unable to ascertain, suddenly and negligently and carelessly permitted said automobile to run off said highway, thereby causing said automobile to plunge into a drainage ditch at the left or east side of said highway, whereby said automobile was overturned and plaintiff violently jostled against the seats, sides, and top of said automobile, and violently thrown against and through the left side of the said automobile, and whereby plaintiff's head, body, and limbs were wounded, bruised, lacerated, and contused, the tibia and fibula of plaintiff's left leg badly fractured, the navicular bone in plaintiff's left ankle fractured."* * *

The answer is a general denial.Summarized from the record, the facts are these: On the 30th day of August, 1922, about noon, the defendant started from her home in the city of St. Louis, Mo., for a ride in her automobile, which she was driving, with the plaintiff, Mrs. Farlow, and Mrs. Cook, as her guests.Mrs. Cook was sitting on the front seat with the defendant, while the other two guests were sitting on the rear seat.The automobile was proceeding southwardly along a public highway in the county of St. Louis, Mo., when the defendant, in attempting to pass a truck, ran her automobile off the highway, thereby causing it to plunge into a drainage ditch at the left of the highway, thus overturning the automobile and severely injuring the plaintiff.

Regarding the manner in which the accident occurred, the plaintiff testified as follows:

"There was a truck there, going south, which was the direction in which Mrs. Wall's car was traveling.Mrs. Hackmann's car was about 100 or 125 feet ahead of Mrs. Wall's car just prior to the accident.Mrs. Hackmann's car passed the truck, which, at that time, was on the right-hand side of the road.At the time Mrs. Hackmann's car passed the truck, Mrs. Wall's car was about 2 or 3 car lengths from the truck.After Mrs. Hackmann's car had passed the truck, Mrs. Wall started to pass it on the right-hand side.There was a bridge just ahead of the truck.The truck was just at the bridge.As Mrs. Wall started to pass the truck, she turned to pass the truck and she threw up her hands and said, `Oh, my God!' and the car just drove right down into the ditch on the left-hand side of the road and turned over on the left-hand side.It got all the way down to the bottom of the ditch.The truck was on the bridge at that time.When the car turned over, I was thrown through the left window and the car fell on my leg and broke it below the knee."

Mrs. Farlow, a witness for plaintiff, testified as follows.

"We followed the other car driven by a lady by the name of Mrs. Hackmann.We were all going to Lake Hill.On the way out we had a wreck.The Dougherty Ferry road is a rock road.At the place where the wreck occurred, it was about 16 feet wide.There was a ditch on either side of the road.Mrs. Wall's car was following the other automobile.There was a truck on the road, traveling in the same direction we were going, towards Lake Hill.Mrs. Hackmann's car passed the truck about 50 feet ahead of our car.The truck was traveling with reference to the center line of the road on the right side when Mrs. Hackmann's car passed it.Mrs. Wall honked her horn to get by the truck and we turned out in order to pass it.She turned to the left side of the road.She turned to pass to the left, and her wheels left the road, and the car went into the ditch.The ditch was on the left-hand side of the road.Mrs. Wall's car never stopped until it went over on its left side in the ditch.I think the ditch wag about 8 feet deep from the edge of the road down to the bottom."

Cross-examination:

"The first intimation I had of the automobile going into the ditch was that it went over on the left side and went down into the ditch and turned over on its side."

H. B. Strohm, a witness for plaintiff, testified as follows:

"I am familiar with the condition of the Dougherty Ferry road at that time, and was road overseer at that time.The road is practically in good shape, about 15 feet wide.We have just graveled it recently, and some gravel on the east side which would naturally work off before it gets"old, and there are two ditches; one on the left side and one on the right, to direct or drain the water to the creek under that bridge.I judge the ditch where the accident happened was about 6 feet deep, and the banks of this ditch were sloping, a gradual slope at that point.When I got there the automobile was lying on the side in the ditch, or rather over against the left bank.Two wheels were in the bottom"of the ditch, the wheels on the left-hand side.When I got there, I seen there was an accident, and I seen there was a lady lying out there, and I walked back, oh, I suppose 30 or 40 feet to see what the cause of the car going on the side was.The track of the wheel went off the road ahead of that gravel and it seemed it kept going a little bit further to your left all the time.I am speaking of the track of the automobile.I suppose it must have been this car because there was no other car there.I saw the print of this automobile wheel down the bank 3 feet anyhow."

Cross-examination:

"There were two wheels at the bottom of the ditch and the machine was lying on the left-hand side, headed westward.As that mark left, you could see nothing much on the edge of the road where these wheels went down, with the exception the weeds were broken a little bit.You could see marks along the edge of the road clear down to where the wheels finally stopped at the point where the machine went over."

The defendant, in her own behalf, gave the following account of the accident:

"I was 3 or 4 car lengths behind the truck when Mrs. Hackmann passed the truck.After Mrs. Hackmann's car passed the truck, I tooted my horn to let him know that I was coming, and, as I did, lie swerved to the center of the road, and I could not pass him, and I stopped.I applied my brake and clutch and stopped the car within 5 or 6 feet, just as quick as I could.I brought my car to a complete stop.We stood perhaps a second and then the car just—the earth gave away and the car just slid down like that into the ditch.When the truck turned over to the center of the road, I applied the brake and let out the clutch.I was at the left side of the road at that time and I was at least 1½ feet from the side of the ditch when I brought my car to a stop.There was fresh gravel there, and from its appearance the roadway looked perfectly solid.After my car had gone into the ditch, I was helped out and made an examination of the roadway at the time.At the particular point where the car was in the ditch the edge of the roadway, the earth crumbled very easily.It showed that it had crumbled at the particular point where the car—just above where the car was laying.My first intimation that the car was going into the ditch was it just started to case down, just like that.It just eased down on its left side.I did not take my hands off the wheel."

Cross-examination:

"All I know is that the earth gave away and the machine went down.I looked afterwards, and the earth had given away.If you put your foot on it, it would give away.When I tooted my horn, the truck was in the right of the center of the road, about 3 car lengths ahead.While I tooted my horn, I was only going 6 or miles per hour.My brakes were in good working order.As soon as I tooted my horn, the truck made a move towards the center of the road, and I applied my...