Bates v. Friedman
| Decision Date | 11 June 1928 |
| Docket Number | No. 16359.,16359. |
| Parties | BATES v. FRIEDMAN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.
"Not to be officially published."
Action for damages for personal injuries by Herschel Bates, a minor, by Roy B. Bates, his next friend, against Sam Friedman. From a judgment for plaintiff, defendant appeals. Affirmed.
Walter H. Maloney and McCune, Caldwell & Downing, all of Kansas City, for appellant.
Trusty & Pugh and Newton C. Gillham, all of Kansas City, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict in the sum of $7,000 but the court compelled him to remit $4,500 of this amount as a condition to the overruling of defendant's motion for a new trial. Judgment in favor of plaintiff was finally entered in the sum of $2,500 and defendant has appealed.
The facts show that plaintiff was injured in Kansas City, Missouri, on July 21, 1925, as a result of a collision between his motorcycle and defendant's motortruck. At the time of the collision plaintiff was a young man seventeen years of age and employed by his father in carpenter work. On the day in question he had finished work and about 4:30 in the afternoon was riding on his motorcycle northwardly on Benton boulevard, a public street in said city. The motorcycle was a two-seated affair and a young man was seated upon it, behind plaintiff. When plaintiff and his companion arrived at a point about midway of the block between 44th and 45th streets, being public thoroughfares running east and west and intersecting Benton boulevard, plaintiff drew up behind and to the left of defendant's truck. The truck was proceeding on the right side of Benton boulevard in the same direction with plaintiff. The latter continued in the position described, about 6 or 8 feet to the left or west of the truck and 3 or 4 feet behind it. The relative position of the two vehicles remained unchanged until they arrived at the intersection of 44th street and Benton boulevard, when the truck suddenly turned to the left or west, and plaintiff ran into the left side of the truck. The motorcycle struck the truck at the point where the front fender of the truck was fastened to the running board. The collision occurred practically at the center of the two streets. It was admitted by the driver of the truck that he did not give any signal with his hand indicating his intention to turn at the time and place in question, but he testified that he was seated in a cab which had a rear window and he looked over his right shoulder and saw no vehicle approaching; that he was unable to see out of the window to the left so did not attempt to do so.
Benton boulevard at the place of the collision is 40 feet and 4 inches in width and 44th street 26 feet and 4 inches wide. It is up hill from 45th street to the south line of 44th street and 44th street is level. Plaintiff testified that the truck proceeded in a straight line until its front wheels arrived at the center of the intersecting streets when it suddenly, without warning, turned to the left; that he was watching the truck to see whether the driver thereof intended to turn or proceed ahead; that the first time that he was made aware that the driver of the truck was going to turn was when it suddenly swerved over in front of him; that he made no effort to turn out of the way because he did not have time; that the truck swerved just before the witness reached the south line of 44th street; that he was at the center line of 44th street when the collision occurred; that when the truck turned the driver made a sudden square turn which placed the truck immediately in front of him about 12 feet away. At another place in his testimony he stated that when the truck started to turn he was about 3 feet behind and 6 feet to the left of it.
On cross-examination he testified that, after he drew up behind and to the left of the truck, the motorcycle and truck ran at a rate of speed of 15 miles per hour until the truck turned; that there were no other vehicles on the street going in either direction at the time and no reason why he could not have driven his motorcycle at a greater distance behind the truck; that it was not his intention to pass the truck; that the street was dry; that the sun was shining; that his brakes were in perfect condition, and under the circumstances he could have stopped within 15 feet.
Plaintiff's companion testified that, as they came up to the intersection of the two streets, the motorcycle was 5 or 6 feet to the west and 3 or 4 feet to the rear of the truck; that the driver of the truck gave no signal with his hand and did not turn his head but kept going straight ahead and continued at the same rate of speed until he turned his truck to the left. An ordinance of Kansas City was pleaded and introduced in evidence, providing:
"Any driver intending to turn to the left shall extend his arm from the left below horizontal so that the same may be seen from the rear of his vehicle * * * any driver intending to turn to the left, after giving the proper signals, shall drive his car as near as practicable to the center of the street or boulevard before attempting to turn toward the left."
Defendant insists that his instruction in the nature of a demurrer to the evidence should have been given, not because the driver of defendant's truck was not guilty of negligence but for the reason, defendant contends, that plaintiff was guilty of contributory negligence as a matter of law. In this connection defendant argues that plaintiff was riding in such a position behind the truck that he should have known that should the latter turn to the left or suddenly stop in front of him it would be impossible for him to avoid a collision; that he gave no signal to indicate to the driver of the truck that he was following close behind; that even though plaintiff was on the lookout for a signal from the driver of the truck, he, nevertheless, placed himself in such a position that if said driver should turn to the left, either with or without giving a signal, he must necessarily run into defendant's truck.
It will be remembered that plaintiff was not driving directly behind the truck but to the side and left thereof. The ordinance not only required the driver of the truck to give the hand signal but, after doing so, to drive his truck as near as practicable to the center of the boulevard before attempting to turn to the left. Of course, a full compliance with the ordinance by the driver of the truck before he started to turn would have required some appreciable length of time, and had he given the signal and driven to the center of the street before turning, plaintiff might have been able, after he had received the signal, to have stopped his motorcycle, or turned it aside and stopped, before the collision took place. Contributory negligence was a matter of defense and it is not conclusively shown that plaintiff would not have had time to have stopped or turned aside and stopped, and thus have averted the collision, had the driver complied with the ordinance. We therefore think that the demurrer to the evidence was properly overruled. Greenleaf v. Lambert, 192 Mich. 411, 158 N. W. 868.
We have examined the cases of Phillips v. Thornton (Sup.) 170 N. Y. S. 533, Sniffen v. Huschle, 121 Misc. Rep. 58, 200 N. Y. S. 206, Spencer v. Magrini, 115 Wash. 29, 195 P. 1041, and Stubbs v. Edwards, 260 Pa. 75, 103 A. 511, cited by the defendant, and find that the facts in those cases are so at variance with those in the case at bar that those authorities are not controlling herein.
It is insisted that the court erred in giving plaintiff's instruction No. 1. This instruction is as follows:
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... ... testimony before the jury in the light most favorable to ... plaintiff we are not persuaded the issue was solely one of ... law. See Bates v. Friedman (Mo. App.), 7 S.W.2d 452, ... 453[2]; Drake v. Thym 231 Mo.App. 383, 386, 97 ... S.W.2d 128, 130[1]; Trimble v. Price (Mo. App.), 282 ... ...
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