Alyea v. Junge Baking Co.
| Decision Date | 03 May 1921 |
| Parties | GUY ALYEA, Respondent, v. JUNGE BAKING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. A. W. Thurman, Special Judge.
AFFIRMED.
Judgment affirmed.
John L McNatt and R. A. Pierson for appellant.
(1) It is the duty of one on a traveled street in a city to use ordinary care for his own safety, "to use his God given senses." Coming up to and proceeding to cross an intersecting street without looking or so much as thinking of possible cross traffic, is a much negligence on the part of the plaintiff as of the defendant; it is just the very negligence plaintiff is charging defendant with, a plaintiff so guilty of contributory negligence cannot recover; the peremptory instruction should have been given. Clark v Railway, 127 Mo. 213; Leopard v. Railway Co., 214 S.D. 268; Lowry v. Smith, 198 S.W. 437; 199 Mo.App. 163; Deal v. Snyder, 168 S.W. 272; Zoltovski v. Gzello, 26 L.R.A. (N. S.) 435; Borg v. Supply Co., 19 L.R.A. (N. S.) 160; Popping v Bourme, 191 S.W. 1032. (2) There must be a proper basis so that the jury may make their estimate--there was no showing of costs, expenses or losses that attended his operations, only his receipts as the test of what he earned. 17 C. J. 795; Pryor v. Railway, 85 Mo.App. 367; Normandie v. City, 206 S.W. 13; Ganz v. Railway, 220 S.W. 496; York v. Everton, 121 Mo.App. 640. (3) The instruction in this form is confusing and misleading, it covertly misses even implying the duty plaintiff owed to use ordinary care to look out for his own safety which the real situation raises, and virtually instructs the jury to find for the plaintiff any how if defendant's car backed into him; it wholly exonerates plaintiff and convicts defendant of a wrong there is no evidence to establish. Latham v. Harvey, 218 S.W. 401; Boles v. Dunham, 208 S.W. 480; Simms v. Dunham, 203 S.W. 652; Lawbaugh v. Mining Co., 202 S.W. 617. (4) The instruction in this form is misleading. Loss of time and loss of profits or earnings are not to be distinguished as to elements of damage, as does this instruction, but the latter is rather the measure of the former. 17 C. J. 780, 894, sec. 195; Slaughter v. Railroad, 116 Mo. 276; Stoetzle v. Swearingen, 96 Mo.App. 592, 17 C. J. 1066; Edmunds v. Railway, 3 Mo.App. 603; Cleveland etc. R. Co. v. Jenkins (Ill.), 66 Am. St. Rep. 296.
Kelsey Norman and George V. Farris for respondent.
(1) The authorities cited by appellant under "point 1" of his brief are principally railroad crossing cases and have no application to cases of this kind, where it is the duty of the auto driver on approaching an intersecting street to keep watch for others. Babbitt Motor Vehicle Law (2 Ed.), sec. 1190, 1191; Carradine v. Ford, 195 Mo.App. 684, 187 S.W. 285; Freeman v. Greene, 186 S.W. 1166; Hodges v. Chambers, 171 Mo.App. 563, 154 S.W. 429; Hennesay v. Taylor (Mass.), 76 N.E. 224; Williams v. Kansas City, 177 S.W. 783. (2) The measure of damages in personal injury cases is to be measured by the amount of money which the injured man might reasonably have earned in the same time by the pursuit of his ordinary occupation, and where plaintiff's earnings are not measured by a fixed wage, it is proper to show the business in which he was engaged, and the extent and amount of his ordinary business, or its average profits. 17 C. J. 894, (par. 195); Wood v. Railroad, 119 Mo.App. 78, 95 S.W. 946; Gray v. Boston El. Ry. (Mass.), 102 N.E. 71; Young v. Tilley, 190 S.W. 95; Singer v. Martin, 164 P. 1105.
Plaintiff filed statement in a justice of the peace court to recover damages for injuries to his hand and wagon alleged to have been caused by a delivery truck being backed against his wagon as he was crossing a street in Joplin. The cause found its way to the circuit court, where plaintiff obtained a judgment for $ 300. From this judgment defendant appealed.
Defendant filed no written answer, but it appears that the principal and only defense urged is the alleged contributory negligence of plaintiff. Defendant claims that error was committed in refusing its instruction in the nature of a demurrer, the admission of evidence, and the giving of instructions. Plaintiff's evidence shows that he was driving a one horse wagon going east on Broadway in the city of Joplin about 11:30 a. m., July 31, 1920. Broadway intersects Galena street. On the southwest corner of Broadway and Galena is a store which faces north. Defendant's delivery truck facing south was standing on Galena street somewhere south of Broadway, and alongside the store. As plaintiff driving in a walk was crossing the intersection, the driver of the truck without any warning, backed into plaintiff's wagon. Plaintiff saw the backing truck too late to get out of the way, and he attempted to set his brake, and in doing so his hand was caught and injured, and his wagon also was damaged. It is some six or eight feet from the east side of the store to the roadway of Galena street, and until plaintiff passed the store he could not see to his right on Galena. Plaintiff had driven some twelve or fifteen feet on the intersection before the collision, and was not particularly noticing. It was further shown that at the time and place there was no traffic of consequence on either Broadway or Galena Streets. Defendant offered no evidence. It is contended that plaintiff's evidence shows him guilty of such negligence as to defeat recovery. In order for plaintiff's negligence to defeat him such negligence must "enter into and form the direct producing and efficient cause of the casualty, and absent which the casualty would not have happened." [Howard v. Scarritt Estate, 267 Mo. 398, 184 S.W. 1144.] Unless we can say as a matter of law no reasonably prudent man would have done as plaintiff did, then the question of his negligence was for the jury. [Osborne v. Wells, Mo.App. , 211 S.W. 887.] If plaintiff had seen defendant's truck backing upon him, he perhaps could not have escaped. The truck was evidently rather near the intersection, and did not start backing until plaintiff's horse was entering upon the intersection. If plaintiff had seen the truck at the earliest possible moment, and it was not then backing, he would have had no reason to anticipate that he would be in danger of this truck if he drove upon the intersection. The truck was then facing south, and certainly plaintiff would have a right to assume that it would not back up across the...
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