Benoist v. Driveaway Co. of Missouri

• Decision Date: 06 December 1938
• Docket Number: No. 24617.,24617.
• Citation: 122 S.W.2d 86
• Parties: BENOIST v. DRIVEAWAY CO. OF MISSOURI.
• Court: Missouri Court of Appeals

122 S.W.2d 86

BENOIST v. DRIVEAWAY CO. OF MISSOURI.

No. 24617.

St. Louis Court of Appeals. Missouri.

December 6, 1938.

Rehearing Denied December 20, 1938.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Action by Beaulah M. Benoist against the Driveaway Company of Missouri to recover for injuries sustained when the automobile in which plaintiff was riding collided with defendant's truck. Judgment for plaintiff, and defendant appeals.

Affirmed.

Strubinger, Tudor & Tombrink, of St. Louis, for appellant.

Henry C. Stoll, of St. Louis, for respondent.

BECKER, Judge.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff when riding as a passenger in an automobile being driven by her husband, which collided with a truck owned and operated by defendant. The case was tried to a jury which returned a verdict for plaintiff, and from the resulting judgment the defendant in due course appeals.

Plaintiff's amended petition upon which the case was tried alleged that about three o'clock a. m., on the morning of March 10, 1935, one of defendant's employees, while driving a truck with a trailer attached, of the type used in transporting automobiles, eastwardly along Natural Bridge road in St. Louis county, negligently caused the truck and trailer to turn and swerve across said Natural Bridge road in a northeastwardly direction, causing same to collide with a Chevrolet automobile, in which plaintiff was riding as a passenger, being driven westwardly along said highway by her husband, and that as a result of said collision plaintiff met with injuries.

The defendant answered plaintiff's amended petition with a general denial and pleaded as an affirmative defense that plaintiff was guilty of contributory negligence in that she permitted herself to be driven in an automobile when she knew, or in the exercise of ordinary care for her own safety would have known, that the driver of the automobile in which she was riding was under the influence of intoxicating liquor and by reason thereof was incapable of driving said machine in a careful and prudent manner; and that she was further guilty of contributory negligence in that she permitted herself to be driven along a highway, under the circumstances then and there existing, at an unlawful, unsafe, and dangerous rate of speed without warning the driver of the automobile to reduce said speed, when she knew, or in the exercise of ordinary care for her own safety would have known, that permitting herself to be driven at said rate of speed, without warning the driver to reduce such speed, was dangerous and likely to result in injury to herself and others using the highway at said time; and that she was further guilty of contributory negligence in that she permitted the automobile in which she was riding to be driven on the left or wrong side of said highway without warning the driver, etc.

Plaintiff filed no reply but the case was tried as though plaintiff had filed a denial of new matter set up in defendant's answer.

The case was submitted to the jury on the question of the violation of section 7775, Rev.St.Mo.1929, Mo.St.Ann. § 7775, p. 5197, which requires that a motor vehicle be driven in a careful and prudent manner and in the exercise of the highest degree of care; and whether or not defendant's employee drove its truck as near to the right-hand side of the highway as practicable, as required by section 7777 (b), Rev.St.Mo.1929, Mo.St.Ann. § 7777 (b), p. 5213.

Defendant, appellant here, assigns as error the overruling of its instruction in the nature of a demurrer at the close of the entire case. We will set forth a résumé of the evidence, having in mind that in determining, on demurrer, the question as to whether or not plaintiff made out a case for the jury, plaintiff's evidence, whether contradicted or not, must be regarded as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and that defendant's evidence must be taken as false where it is contradicted by that of plaintiff; furthermore that plaintiff is entitled to the benefit of every reasonable inference favorable to her case, which the evidence tends to support. Cento v. Security Bldg. Co., Mo.Sup., 99 S.W.2d 1; Grubb v. Curry, Mo.App., 72 S.W.2d 863; Marshak v. Grocery Co., Mo.App., 83 S.W.2d 185, 190; Freeman v. Terminal R. R. Ass'n, Mo. App., 78 S.W.2d 559; Mick v. Thompson Co., Mo.App., 77 S.W.2d 470, 474; Howard v. Sacks, Mo.App., 76 S.W.2d 460, 463; Steger v. Meehan, Mo.Sup., 63 S.W.2d 109, 110.

Plaintiff herself testified that on Saturday evening, March 9, 1935, at about ten o'clock, she and her husband left their home on Minerva avenue in St. Louis, with Mr. and Mrs. Abraham, in the Abrahams' Chevrolet; that in the party were Mr. and Mrs. McNabb, who were in another automobile; that they drove to a tavern in Wellston, adjacent to St. Louis, where they had some drinks; that they left this tavern about eleven o'clock and drove to another tavern located at St. Louis and Clara avenues in St. Louis, where the Benoists and Abrahams remained until three o'clock Sunday morning, the McNabbs leaving an hour or so earlier. At the latter tavern, according to plaintiff's testimony, her husband spent a part of his time playing ping pong, and drank three or four small glasses of beer. Mr. Abraham was under the influence of liquor by the time the party was ready to leave, and at the suggestion of several people in the tavern Mr. Abraham was prevailed upon to permit Mr. Benoist to drive the car. According to plaintiff's testimony Benoist was not under the influence of liquor; and this is corroborated by a Dr. Casey who saw Benoist shortly after the accident; by the owner of the tavern who saw Benoist as he started away from the tavern; and also by a deputy sheriff who observed Benoist at a hospital where Benoist was taken for treatment.

Plaintiff further testified that upon leaving the last tavern her husband was driving the Chevrolet with Abraham in the front seat with him, while she and Mrs. Abraham sat in the rear; that as the car was driven westwardly on Natural Bridge road it was raining hard; that at the west end of a curve along the highway their automobile brushed fenders with an eastbound Ford automobile, and that about two blocks west of this point their automobile collided with defendant's truck which was being driven eastwardly. According to plaintiff, when she first saw the truck it was in the center of the highway; that as the two vehicles drew nearer, the truck came farther over on the north side of the road, and that her husband turned his vehicle farther to his right, and had got the Chevrolet partly off the road when the defendant's truck swerved northeasterly and "he hit us on the side I was on," which was the left side of the automobile in which plaintiff was riding.

On cross-examination plaintiff was asked whether she had made any objection to her husband regarding the manner in which he was driving the automobile. She answered: "No, I did not; I had no reason to make any objection."

On redirect examination plaintiff testified that her husband at no time drove the automobile "more than twenty-five miles an hour."

"Q. You testified you made no complaint as to which side of the road he was driving on. Now, throughout this trip was he at any time, or was this Chevy at any time, on the left side of the street or on the left side of the road? A. No.

"Q. And you made no request to get out, I believe you said? A. No.

"Q. Did you have any occasion to make such a request? A. No."

Elmer Benoist, husband of plaintiff, corroborated plaintiff's testimony. As to defendant's truck he testified that "it was a couple of hundred feet away when I noticed the truck ahead toward the middle of the road and I had seen the head lights farther back. * * * He kept on edging over from his left toward me, the north side of the road, but I thought I could squeeze through there, so I kept on going, and just as he got within ten or fifteen feet of me he swerved in, and as he swerved in I shot my wheels to the right and just as the right front wheels went off the pavement we crashed. * * * He swerved in suddenly there. The right wheel of the Chevrolet was off the paved portion just before he hit; it went off just before we crashed. The truck was facing northeast and I was facing northwest."

As to the positions of the truck and the automobile after the accident, James Stanley Campbell, a witness for defendant, testified that he passed the scene of the accident shortly after it had occurred, and at the request of the plaintiff took her to a hospital; that he had approached from the west and was able to pass to the right of the trailer of the truck; "the back end was on the right side and it was jack-knifed across the road at an angle. The front end was on the left side of the road. * * * I had to pull off into the mud there and go around it. * * * The rear end of the trailer was on the right side of the highway. * * * The tractor part was on the left side."

Martin Lockner, a witness for defendant who was a passenger in the Ford automobile with which the Chevrolet in which plaintiff was riding "bumped fenders" prior to its collision with defendant's truck, testified that after plaintiff's car had passed them, Kempfer, who was driving the Ford, turned the car around and they drove back to the spot where the accident had occurred. As to the positions of the cars, he testified that he "found that the truck was jackknifed somewhat across the highway. It had its truck part or the cab part facing northeast and the trailer part was on the south side of the road facing east."

Milton Kempfer, driver of the Ford, as to the positions of the cars after the accident, testified that "the rear of the trailer was still on the south side, and there was just enough room for a car to get by...