Biscoe v. Kowalski
| Decision Date | 09 April 1956 |
| Docket Number | No. 1,No. 44859,44859,1 |
| Citation | 290 S.W.2d 133 |
| Parties | William E. BISCOE, Appellant, v. John F. KOWALSKI and Jerome Carl Kowalski, by his father and guardian ad litem, John F. Kowalski, Respondents |
| Court | Missouri Supreme Court |
R. P. C. Wilson, III, Platte City, E. E. Thompson, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for appellant.
Harry P. Thomson, Jr., Frank J. Stark, John M. Kilroy, Kansas City, Shughart & Thomson, Kansas City, Mo., of counsel, for respondents.
VAN OSDOL, Commissioner.
This is an appeal from judgments for defendants rendered in an action for $20,000 damages for personal injuries allegedly sustained when an automobile driven by defendant Jerome Carl Kowalski and owned by his father, defendant John F. Kowalski, collided with the left side of the rear end of a school bus operated by plaintiff, William E. Biscoe. The bus, headed westwardly, had been stopped for the discharge of school children at a farm home on the right (north) side of Bee Creek Road (or Boulevard), an east-west public highway surfaced with gravel in Platte County.
Plaintiff had alleged that defendant Jerome, a minor seventeen years old, was driving the automobile as the agent, servant and employee of his father, defendant John. It was further alleged that defendants negligently caused, allowed and permitted the automobile operated by defendant Jerome to violently collide with the rear end of the school bus; and that defendants were negligent in failing to keep a lookout ahead, in failing to stop, slacken speed, or change the course of the automobile so as to avoid the collision after defendant Jerome saw or in the exercise of the highest degree of care could have seen the school bus standing on the highway, and in failing to stop (see Section 304.050, subd. 1, RSMo 1949, V.A.M.S.) before coming to the place where the bus was standing.
At the conclusion of plaintiff's evidence the trial court sustained a motion for a directed verdict as to plaintiff's claim against defendant John. At the conclusion of all of the evidence the trial court overruled plaintiff's motion for a directed verdict in plaintiff's favor as against defendant Jerome. The jury returned a verdict in favor of defendant Jerome, the trial court having submitted plaintiff's case as against that defendant in plaintiff's verdict-directing Instruction 1, as follows,
'The Court instructs the jury that if you find and believe from the evidence that on or about September 25, 1952, plaintiff was operation the school bus, mentioned in evidence, in a westerly direction on Bee Creek Boulevard, a public highway, * * * and brought same to a stop with the right-hand side thereof near the north edge of the shoulder on aforesaid highway, approximately in front of the Mason driveway, referred to in evidence, for the purpose of permitting the Mason school children to alight from said bus, if you so find, and if you further find that while said bus was stopped in the aforesaid position Jerome Kowalski negligently caused, allowed and permitted the automobile he was driving to strike and collide with the rear end of the aforesaid school bus, and if you further find that as a direct result of the aforesubmitted negligence of Jerome Kowalski plaintiff was injured then you are instructed that your verdict should be in favor of plaintiff and against the defendant.'
Herein upon appeal, plaintiff-appellant contends defendant Jerome was negligent as a matter of law in driving into the school bus which was stopped for the discharge of school children on the public highway, and, consequently, the trial court erroneously denied plaintiff's request for a directed verdict in plaintiff's favor on the issue of Jerome's negligence. Plaintiff-appellant further contends that, inasmuch as defendant Jerome was negligent as a matter of law, it was error for the trial court to give defendant Jerome's Instruction A, by which the jury was told that in their deliberations it was their duty to decide first whether plaintiff was entitled to recover against defendant Jerome, and that until this question, had been determined the jury had no right to consider the amount of plaintiff's damages. And plaintiff-appellant further contends that evidence tending to show that the brakes on the automobile were inadequate convicted defendant John of negligence as a matter of law in failing to have his automobile equipped with two sets of adequate brakes in good working condition, Section 304.560(3) RSMo 1949, V.A.M.S., or at least a prima facie case of negligence in violating the statute was made out, and, therefore, the trial court erred in sustaining defendant John's motion for a directed verdict at the close of plaintiff's case.
There was evidence introduced tending to show that plaintiff, forty-eight years old, was the regularly employed driver of the school bus. On September 25, 1952, sometime between four and four-fifteen in the afternoon, plaintiff was driving the 36-passenger school bus, weighing three or four tons, in transporting school children to their various homes from the school of a reorganized school district which included Platte City. Proceeding from Platte City, the school bus had been followed by the 1951-model Nash sedan belonging to defendant John and driven by defendant Jerome.
Plaintiff testified that Jerome, in following the bus at that time, and in the afternoon of the preceding day, several times had run up 'behind me and stopped real quick.' Plaintiff said he at one time stopped the bus and motioned Jerome to come on by, but he wouldn't do it. 'He kept right on behind the bus.'
Plaintiff stopped the bus at the Mason farm home situate on the north side of Bee Creek Road at a point about three-fourths of a mile west of its intersection with U. S. Highway No. 71. While the school bus was there stopped, plaintiff, looking back through the window of the rear door, saw the Nash, five or six hundred feet away, coming westwardly over the hill east of the Mason home at a speed around sixty miles an hour. The Nash sedan, as stated, collided with the left side of the rear end of the bus. The force of the collision jarred the bus forward three or four feet. A school girl sitting or standing near the rear end of the bus sustained a bump or 'knot' when her head had come into contact with and cracked the glass of the rear door. None of the other children, thirty or thirty-five in number, sustained any injury.
Plaintiff got out of the bus and talked with defendant Jerome who explained that his brakes had failed. Plaintiff did not then claim to be injured, nor did he mention any injury when he was talking with defendant Jerome the next day.
Defendant Jerome's written statement was introduced into evidence in which statement Jerome admitted and explained as follows, In testifying in his own behalf, defendant Jerome said that about noon of the day of the collision he had had occasion to pump the brakes--the pedal didn't go all the way down. He denied that he had been 'racing up behind this bus, stopping, catching up with it, or anything of that sort.' He saw the bus stop when he came over the hill east of the Mason home. He did not apply the brakes until his automobile was about four car lengths from the back end of the bus. He had been following the bus to find out where one of the school girls resided.
Defendant John testified he had driven the sedan every day while at work in Kansas City during ten days or more before the collision, and had driven the sedan on Saturday or Sunday preceding the collision (on Thursday). He had had no difficulty with the brakes. He had been away from home for three or four days before the day of the collision, and had left the sedan at home for the use of the family.
The effect of the conflicting evidence introduced relating to plaintiff's injury is of particular interest in this case. The questions whether or not plaintiff was actually injured in any respect in the collision, and, if so, the nature and extent of such injury were strenuously contested, and these questions have a peculiar relation to the contentions of the parties herein upon appeal.
There was medical testimony introduced by plaintiff tending to show that, in the collision, plaintiff had suffered a 'whiplash' injury to his neck which aggravated an old injury and fracture to his neck and left shoulder sustained in June, 1947. Plaintiff said he had not completely recovered from this former injury. Plaintiff also introduced evidence tending to show there was a narrowing of the space between the fifth and sixth cervical vertebrae in which spinal region there was a pre-existing arthritic condition. Physicians were of the opinion that trauma had aggravated the pre-existing condition in plaintiff's neck and left shoulder, and had 'lighted up' or activated or reactivated the preexisting arthritic condition in the cervical spine. Although physicians testifying in plaintiff's behalf gave their opinions that these reactivated or aggravated painful conditions of the neck, shoulder and spine were due to trauma experienced in the collision, they admitted that these conditions could have come about without trauma. On the other hand, there was medical evidence tending to show that plaintiff's arthritis was of the degenerative type, progressive through the years, and that there were no clinical or X-ray manifestations of any condition or activation or reactivation thereof which was caused by any trauma experienced in the 1952 collision. In passing, we say the jury was not obliged to believe plaintiff's evidence. And,...
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