Benson v. Smith, 17197.

• Decision Date: 04 May 1931
• Docket Number: No. 17197.,17197.
• Citation: 38 S.W.2d 743
• Parties: BENSON v. SMITH et al.
• Court: Missouri Court of Appeals

38 S.W.2d 743

BENSON v. SMITH et al.

No. 17197.

Kansas City Court of Appeals. Missouri.

May 4, 1931.

Appeal from Circuit Court, Callaway County; H. A. Collier, Judge.

"Not to be officially published."

Action by Alice P. Benson against Travis Smith and another. From the judgment, defendants appeal.

Reversed and remanded.

See, also, 38 S.W.(2d) 749.

Clark, Boggs, Cave & Peterson, of Columbia, for appellants.

Baker & Baker, of Fulton, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,000.00 and defendants have appealed.

The facts are all shown by the witnesses for plaintiff, defendant adducing no testimony. The testimony tends to show that on September 29th, 1929, about 6:30 p. m., plaintiff was injured by being run into by an automobile owned by the defendant, A. C. Smith, and being driven by his son, the defendant, Travis Smith. Plaintiff was injured at a point on highway No. 54 a few miles north of Fulton. The road at this place runs north and south. It is paved with concrete 18 feet in width, having a black mark running along the center of the pavement. Plaintiff was struck at a point on the pavement about 450 feet south of what is called, by the witnesses, a hill or knoll. There is a declivity from the summit of the knoll running in both directions. It had been raining but the rain had practically stopped at the time of the collision. However, the pavement remained wet. Plaintiff and her husband had been driving in a Ford automobile south on the west side of the highway at the place in question when the left front wheel of their car collided with the left front wheel of another Ford car being driven by a colored man by the name of Baker, going in the opposite direction. The left front wheel of each car was torn off in this collision.

After the cars collided the Benson car went on south about 30 feet and stopped on the west side of the center line of the road wholly on the pavement and headed in a southwesterly direction. The Baker car stopped on the west side of the center line of the road pointing slightly in a southwesterly direction with its front end partly off of the concrete and its rear end extending east of the center line.

While the collision between these two cars was taking place, one Rutherford was traveling in an automobile north toward the point of the collision, followed behind by one Detweiler. After the collision Rutherford stopped his car upon the east side of the pavement with the left side of his car upon the pavement and the right side upon the shoulder, the car being mostly off of the pavement with its lights burning. Detweiler stopped his car on the east side of the pavement 25 or 30 feet to the rear of the Rutherford car, with its lights burning, upon the shoulder but near the pavement. Following the Benson car was another car south bound, driven by one Holt, in which Holt's wife was riding. These parties saw the collision and immediately thereafter Holt stopped his car on the west side of the pavement 15 or 20 feet back of the point of the collision. He then backed his car up 40 or 50 feet where he stopped on the left side of the pavement with the wheels on its right side off of the pavement. His lights were also left burning. He and his wife alighted from the car and went to a point south of the Baker car, where they saw plaintiff prostrate upon the pavement.

At the time of the collision with the Baker car, plaintiff either opened the door or fell out of the car in which she was riding and after it stopped she was found lying upon her back with her head over the black line in the middle of the pavement and her feet extending in a southwesterly direction. She was lying at a point half way between the two cars that had collided. When the car stopped Mr. Benson got out of the same and went back to where his wife was lying. She then had sustained no visible injury and her glasses were in place. He asked her if she was hurt and she replied that she did not know. Mr. Benson, standing on the west side of plaintiff, in a stooping position, undertook to raise her from the pavement and was holding her head and shoulders in his arms.

Holt and his wife, after passing the Baker car, saw the position of plaintiff and her husband as we have just detailed it. About that time some one said, "Stop the traffic," and Holt walked 100 or 150 feet to the north. In the meantime two other cars had come over the knoll and stopped to the rear of the Holt car on the west side of the pavement. When Holt arrived at a point 100 or 150 feet toward the north he saw the automobile driven by defendant, Travis Smith, coming southward. He waved to the occupants of the car but it did not stop. The Smith car was at this time slightly to the east of the black line in the center of the pavement, if not slightly over that line, proceeding at a rate of speed of about 35 miles per hour.

The right rear fender of the Smith car struck one of the cars on the west side of the road before striking the Baker car. It then struck the last mentioned car a slight blow, not moving it appreciably from its position. It then struck plaintiff and her husband about their heads and then the Benson car. Thereafter it turned to the southeast and struck the Rutherford car with such force as to knock that car into the Detweiler car. It then stopped, occupying the place formerly taken by the Rutherford car. It stopped on the east side of the road and pointing in a southeasterly direction with its rear end extended diagonally over the center of the pavement, so that Benson, in going south to the car that conveyed him and plaintiff away, was required to go around the rear end of the Smith car.

Prior to plaintiff's injuries and immediately after the collision between the Benson and the Baker cars, Rutherford and Detweiler alighted from their cars and went to where plaintiff was lying upon the pavement. Detweiler testified: "Well, as we was going to her, I observed the lights of a car (the Smith car) coming over the grade. Of course, I was interested in watching where that car was going as well as taking care of her, so I noticed that the car had not checked any it looked like, and it didn't look like it was going to check, and I run to get out of the way." When Detweiler ran or jumped out of the way the Smith car was 40 or 50 feet away. At this time Detweiler was standing at plaintiff's feet east of her, and Rutherford was standing nearby. They both ran or jumped to the west, Detweiler into a ditch on the west side of the road, to avoid being struck by the Smith car.

Benson testified that the car struck him in the head and knocked him "back"; that he could not state whether he "let loose" of her at the time; that the Smith car "had no more than passed than I had her in my arms"; that plaintiff was "practically" in the same position on the concrete before the Smith car struck her as she was afterwards. Benson further testified that, while he was attempting to assist plaintiff, "somebody hollowed, `Get out of the way', and I looked up and this Smith car was coming right here—I thought it was over both of us"; that only a minute or two elapsed between the time of the collision between his car and the Baker car and the coming of the Smith car.

Defendant, Travis Smith, who was 18 years of age when his collision with plaintiff occurred, testified that the first thing that attracted his attention was the lights on the Rutherford car, which he first saw 100 or 150 feet away. This was when the witness was on the brow of the hill; that at this time he saw that something was wrong; that he observed "a car to my right upon my side of the road and on the concrete and blocking the highway. There wasn't sufficient room for me to get through and I tried to stop my car"; that he applied his brakes immediately; that he "swung around" the first car on his right; that he applied his brakes but on account of the pavement being slick he started to skid and skidded for the whole distance from the top of the hill until he struck the Rutherford car; that he slackened his speed very little; that in his opinion he struck two cars; that to the best of his knowledge he did not strike the Baker car, the Benson car or either of the Bensons; that the first car he struck was the one near the top of the hill which car was located on the right side of the road, headed south, which he hit a glancing blow; that in his opinion he struck no other car except the Rutherford car. The witness further testified that he did not see plaintiff or her husband until after he had struck the Rutherford car.

The witness Adkinson testified that some days after the accident he had a conversation with defendant, Travis Smith, who told him "that he did bump some cars down through there, but they had that road blocked, and he said if the road had been open he would not have struck anybody. * * * He said he might have hit Benson, but he was sure he didn't hit that woman."

The facts further show that the Baker car was 13 feet in length; that the Smith car was a La Salle sedan, weighing about 4,000 pounds; that it was 15 feet 6 inches in length; that it was equipped with four wheel brakes which were in good condition at the time.

There were five grounds of negligence set up in the petition: (1st) That defendants and their servants knew or should have known that the highway was blocked, yet they carelessly and negligently undertook to pass; (2nd) That defendants and their servants saw or should have seen plaintiff in a prostrate position on the concrete highway, and her husband in the act of raising or assisting her therefrom, yet they nevertheless ran and operated their automobile upon, over and against plaintiff and her husband; (3rd) That defendants at the time were operating their automobile at a high, dangerous and reckless rate of speed and carelessly and negligently failed to keep their...