Allison v. Dittbrenner

• Decision Date: 23 May 1932
• Docket Number: No. 17502.,17502.
• Citation: 50 S.W.2d 199
• Parties: ALLISON v. DITTBRENNER.
• Court: Missouri Court of Appeals

50 S.W.2d 199

ALLISON v. DITTBRENNER.

No. 17502.

Kansas City Court of Appeals. Missouri.

May 23, 1932.

Appeal from Circuit Court, Cole County; W. S. Stilwell, Judge.

"Not to be officially published."

Action by Alice L. Allison against Erhard E. Dittbrenner. During the pendency of the case, plaintiff acquired the name of Felt by marriage. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Ira H. Lohman, of Jefferson City, for appellant.

Irwin & Bushman, of Jefferson City, for respondent.

BOYER, C.

Plaintiff sued on account of injuries alleged to have been received by her while riding as a guest in the automobile of defendant. She obtained a verdict, and defendant appealed. Thereafter plaintiff acquired the name of Felt by marriage.

Appellant urges error on the part of the trial court in overruling the demurrer to the evidence; in giving plaintiff's instruction No. 1; in refusing defendant's instruction G; and urges error in certain events during the progress of the case said to be inimical to a fair trial and responsible for an excessive verdict.

There is evidence of the following facts: Defendant is the husband of plaintiff's daughter, and plaintiff resided in the home of defendant. A short time prior to the cause of this suit plaintiff had gone to Excelsior Springs where she remained for a period of about ten days. On Sunday, February 24, 1929, defendant, his wife, and another drove from Jefferson City to Excelsior Springs for an outing and to take plaintiff home with them if she desired. Upon the implied if not direct invitation of defendant, plaintiff got in defendant's car to make the return journey to Jefferson City. The defendant drove the car to Boonville, at which place he requested his wife to drive thence. She demurred somewhat on account of recent illness, but nevertheless assumed the driver's seat, took the wheel, and proceeded along a paved state highway known as No. 40, until they reached a point a short distance west of the town of Columbia, when for some reason she lost control of the car and it skidded upon and across the highway and landed head on in a ditch and against the bank on the left-hand side of the road. Plaintiff and defendant were at the time occupying the back seat, and the other guest of defendant was riding in the front seat with the driver. The four persons in the car were all called as witnesses for the plaintiff, and their testimony is all the evidence except the medical.

Maude M. Jilbert, the guest riding beside the driver, testified by deposition that she had been invited to go with defendant and his wife to Excelsior Springs; that she did so, and that defendant drove the car all the way both going and on the return to Boonville; that the company had supper at that place and when they departed darkness was approaching; that defendant's wife drove the car at his request; that at the time of the accident the car was going down hill at the rate of 35 miles an hour; that "the car swerved right off in the ditch"; she was looking ahead and did not see any mud or anything like that on the road; rain had been falling all day, and it was then about 9 o'clock; that the car was being driven on the right-hand side of the road; that there was a side road which led off to the left and the car swerved to the left; "the car seemed to make an awful swerve in the road"; "I thought that was what she was turning for, although the car was a full length past the road"; that the car was just about parallel with the side road and landed in the ditch. She also testified that defendant and his wife were out late the night before, and during the next day Mrs. Dittbrenner stated that she was sleepy, and two or three times took a cushion and said she wanted to take a nap; she was then in the back seat. On cross-examination this witness testified in reference to the speed of the car and said that it was "not any faster than usual, but I thought it was pretty fast," and that the speed was no more than ordinary on the concrete road, but "they go pretty fast on that road"; that she did not notice anything out of the ordinary until the car began to swerve off the concrete; "I don't know what caused it to go off the concrete." The witness admitted that she had, stated to another that the accident was not the fault of Mrs. Dittbrenner and said: "I didn't like to blame anyone who had taken me out for a trip, and to say that they deliberately ran off in the ditch, but it wasn't anyone else's fault, and Mrs. Dittbrenner wasn't well, and besides she was tired."

Plaintiff testified, among other things, that at the time they left Boonville it was dark and raining; that Mrs. Dittbrenner drove from Boonville to the scene of the accident; that she was not a judge of speed; that she was in the back seat, and, when asked about the condition of the road, said: "I noticed that there must have been a little upward grade because I could feel it as Mrs. Dittbrenner stepped on the gas, * * * but no more had I thought that until we started down grade and then the car swerved. * * * It stopped suddenly and Mr. Dittbrenner hollered, `Don't apply the brakes!' It was all done so quickly — we were in the ditch before I knew it. I think we were going at a pretty good speed but it all happened so quickly, and I noticed the car slacken its speed very suddenly and swing." It was raining at the time. She described the movement of the car as swerving to the left, then to the right and upward. The car turned to the left partially around and went into the ditch. She described her injuries, suffering, and afflictions, and said that one of her afflictions was a frequent loss of consciousness which would happen as often as four or five times a day; that she was never known to faint before. She was cross-examined and stated that she had an idea the car was going about 40 miles an hour; that she did not request the driver to slacken the speed; that she had no authority over the driver, and, when asked if she knew the speed of the car was fast, said: "No, no faster, I don't suppose, than other cars I have ridden in. I am not a judge of speed." She was examined to some extent about her previous physical condition and was then re-examined by her counsel, at the conclusion of which the witness started to leave the stand and fell in an apparent faint. At this time Mrs. Dittbrenner, wife of the defendant, made the following exclamation from the counsel table: "That is your fault, Mr. Lohman, and your insurance company's. You knew she couldn't stand that!" At this point there was general confusion in the courtroom; plaintiff was was carried limp to an anteroom, and the court declared a recess for thirty minutes, after which time the trial proceeded.

Plaintiff then called the defendant as her witness. He testified that at the time of the accident the car was going down grade, and that he estimated "it was going at least thirty-five and not more than forty-five." He described the road as a concrete pavement and said: "It was wet and occasionally where farm entrances or side roads came into it there was mud on the pavement." The car had four brakes, and they were wet; that just before the accident the car was going up a rise; that at the time the car began to swerve he thought the brakes had been applied. "The first motion of the car was to swerve to the right and she caught it and cut it a little bit too hard and it started to the left and then back to the right and after that it got out of her control and shot across the pavement." The car was stopped by the embankment. "From the time the car started to swerve until it hit there wasn't time to stop the car"; he felt the brakes go on; the wet pavement would not necessarily have any other effect than to stop the car; that a car is not liable to skid to one side unless it was slippery; that there was a country road that came in there. When asked whether there was any dirt or mud on the road, he said: "There was on the other side of the road — we could see that. We couldn't see anything on our side of the road." He was asked to state the condition of plaintiff since the injury and said: "Pretty much what you saw here."

Mrs. Dittbrenner testified that at Boonville she objected to driving the car because it was a dark night and raining, but that her husband would not hear her objections. Her description of the accident is given in the following words: "We were on No. 40 coming east from Boonville; we had crossed the bridge and I was going along at a fairly good rate of speed and just on the other side of Columbia there is a gradual grade going up and I naturally would step on the gas a little bit in order to keep my speed going up the grade and we were over the crest before I anticipated it, and I put on the brakes and Mr. Dittbrenner yelled, `Don't put on the brakes' or `Take your foot off the brakes' or something, and I yelled back, `The brakes won't hold,' and the next thing I knew the car skidded backward and forward and we headed into the ditch." When asked about her mother's condition since the accident, she said: "Very poor; some weeks she has very bad weeks — I have counted from twelve to fifteen times a day when she loses consciousness." On cross-examination, witness said she had driven a car for years and drove frequently with her mother; that between Boonville and Columbia she had been driving in the neighborhood of 40 miles an hour; that her mother made no objection; "she is too polite." She was asked to state how the car happened to leave the highway and said: "I suspect that when I put the brakes on with the wet pavement and the dark night it went off. Ordinarily...