Bowman v. Moore

• Decision Date: 07 December 1942
• Citation: 167 S.W.2d 675,237 Mo.App. 1163
• Parties: L. E. Bowman, Plaintiff in Error, v. Anna I. Moore, Defendant in Error
• Court: Kansas Court of Appeals

167 S.W.2d 675

237 Mo.App. 1163

L. E. Bowman, Plaintiff in Error, v. Anna I. Moore, Defendant in Error

Court of Appeals of Missouri, Kansas City

December 7, 1942

Appeal from Bates Circuit Court; Hon. Dewey P. Thatch, Judge.

Reversed and remanded.

Fred F. Wesner for plaintiff in error.

(1) Plaintiff in error's demurrer to the evidence should have been sustained. 45 C. J., par. 477, p. 897, par. 478, p. 901 par. 479, p. 902, par. 480, p. 905; Inman v. Walter Freund Bread Co., 58 S.W.2d 477, 481; Vario v Vario, 99 S.W.2d 113, 115; State v. Cox, 276 S.W. 869, 871; Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Schroeder v. Wells, 310 Mo. 642, 276 S.W. 60; Smith v. Kansas City Pub. Serv. Co., 43 S.W.2d 548, 553; McDonough v. Smith (Mont.), 284 P 542; Levesque v. Pelletier (Me.), 161 A. 198; Moore v. Railway Co., 54 S.W.2d 767; Holt v. Bartlett, 1 S.W.2d 1030, 1033; Devine v. Barton, 22 S.W.2d 877; Feeherty v. Sullivan, 129 S.W.2d 926, 928; Borgstede v. Waldbauer, 88 S.W.2d 373, 376; Tate v. M.-K.-T. Ry. Co., 93 S.W.2d 873; State ex rel. K. C. So. R. R. Co. v. Shain et al., 105 S.W.2d 915, 918; Mahl v. Terrell, 111 S.W.2d 160; Peoples Finance Corp. v. Buckner, 126 S.W.2d 301, 302-303. (2) The court erred in giving Instruction No. 1, on behalf of plaintiff. Krelitz v. Calcaterra, 33 S.W.2d 909, 911; Clark v. Wells, 44 S.W.2d 863, 865; Rosenkoetter v. Fleer et al., 155 S.W.2d 157; Lampe v. Franklin American Trust Co., 96 S.W.2d 710; Lewis v. Ill. Cent. Ry. Co., 50 S.W.2d 122; Alexander v. Hoenshell, 66 S.W.2d 164; Pandjiris v. Oliver Cadillac Co., 98 S.W.2d 978; Griffith v. Delica Meats Products Co., 125 S.W.2d 431; Nelson v. K. C. Pub. Serv. Co., 30 S.W.2d 1044; McDonald v. K. C. Gas Co., 59 S.W.2d 37; Smith v. Wallace, 119 S.W.2d 813; State ex rel. City of Jefferson v. Shain et al., 124 S.W.2d 1194; Knebel v. Poese, 153 S.W.2d 844, 846; Cytron v. St. Louis Transit Co., 104 S.W. 109; Carroll v. Union Marine Ins. Co., 249 S.W. 691; State ex rel. City of Jefferson v. Shain et al., 124 S.W.2d 1194; Berry v. K. C. Pub. Serv. Co., 108 S.W.2d 98, 104; State ex rel. Jenkins v. Trimble, 236 S.W. 651; Continental Cas. Co. v. Monark Transfer & Storage Co., 23 S.W.2d 209; Weishaar v. K. C. Pub. Serv. Co., 128 S.W.2d 332, 343; Cole v. Waters, 147 S.W. 552; Knapp v. Hanley, 132 S.W. 747; Freeman v. Berberich, 60 S.W.2d 393; James v. Mo. Pac. Ry. Co., 107 Mo. 480, 18 S.W. 31; Stuart v. Dickinson, 235 S.W. 446. (3) The court erred in giving Instruction No. 3, on behalf of plaintiff below. (4) The court erred in giving Instruction No. 4 requested on the part of the co-defendant, Dunfee. Barr v. Nafziger Baking Co., 41 S.W.2d 559, 563; Berry v. K. C. Pub. Serv. Co., 108 S.W.2d 98, 102; State ex rel. Nevins v. Hughes et al., 149 S.W.2d 836.

Gayles R. Pine and Vance Julian for defendant in error.

(1) The evidence establishes the negligence of plaintiff in error warranting submission of the case to the jury. Glick v. Arnick, 58 S.W.2d 714; Jones v. Met. Life Ins. Co., 130 S.W.2d 967; Grubb v. Curry, 72 S.W.2d 863; Freeman v. Terminal R. R. Co. Assn., 78 S.W.2d 559; Gay v. Samples et al., 227 Mo.App. 711, 57 S.W.2d 768; Kuba v. Nagel, 124 S.W.2d 597; Greer v. St. Louis Pub. Serv. Co., 87 S.W.2d 240, 244; Gillis v. Singer, 86 S.W.2d 352, 357; Setzer v. Ulrich, 90 S.W.2d 154, 156; Ritz v. Cousins Lbr. Co., 227 Mo.App. 167, 59 S.W.2d 1072; Sec. 8385, R. S. Mo. 1939, clause (h). (2) Instruction No. 1 covered the whole case concerning liability of L. E. Bowman. Smyth et al. v. Hertz Driv-Ur-Self, 93 S.W.2d 56, 59; Greer v. St. Louis Pub. Serv. Co., 87 S.W.2d 240; Willis v. Robinson, 237 S.W. 1030, 1033; Fowlkes v. Fleming, 17 S.W.2d 511; Stewart v. Eveland, 38 S.W.2d 301; Spears v. Indep. Order of Forresters, 107 S.W.2d 126, 131; Duckworth v. Dent, 142 S.W.2d 85; McEntel v. K. C. Pub. Serv. Co., 159 S.W.2d 336; Garrett v. Damron, 110 S.W.2d 1112, 1116. (3) Instruction No. 3 was proper. (4) Instruction No. 4 was proper in form. Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W. 559; State ex rel. v. Ellison, 260 Mo. 129, 139, 168 S.W. 744, 746; Mayher v. Donk Bros. Coal & Coke Co., 323 Mo. 799, 20 S.W.2d 288.

OPINION

Cave, J.

This is an action for damages for personal injuries resulting from an automobile collision. Anna I. Moore was plaintiff below and L. E. Bowman and John W. Dunfee were co-defendants. The cause was tried to a jury in Bates County, resulting in a verdict and judgment for plaintiff and against both defendants in the sum of $ 2000. Defendant Dunfee did not file a motion for new trial. Defendant Bowman filed such a motion, which was overruled, and he perfected appeal to this court, which appeal was dismissed by him and a writ of error sued out, bringing the matter to this court.

For the sake of clarity, the parties will be referred to as they were in the trial court, and as there were three automobiles involved in the accident, they will be referred to by the name of the driver of each car.

Defendant Bowman strenuously and ably argues that the court erred in refusing to give his instruction in the nature of a demurrer at the close of all the evidence, therefore, it will be necessary to detail the testimony more fully than we otherwise would.

The negligence charged against defendant Bowman is:

"1. That the defendant, L. E. Bowman slowed up and stopped his said automobile on said highway, on the right hand side of the center of the pavement, the same being the east side of said pavement, without any warning or signal of his intention to slow up or stop his automobile, failing to extend his arm from said automobile so that the same could be seen in the rear of his automobile, thereby affecting the movements of the automobile driven by defendant, John W. Dunfee in operation of his automobile behind L. E. Bowman's automobile, so as to cause the automobile driven by John W. Dunfee to run into and collide with the automobile in which plaintiff was riding.

"4. That defendant, L. E. Bowman slowed up and stopped his said automobile on said highway at said time and place in such a manner so as to obstruct the traveled portion of said highway.

"5. That defendant, L. E. Bowman slowed up and stopped his said automobile on said highway at said time and place immediately in the path of the automobile driven by defendant, John W. Dunfee, so as to cause John W. Dunfee's automobile to collide with the automobile in which plaintiff was riding."

Bowman's answer was a general denial.

The evidence discloses that at about 1:30 P. M., on February 6, 1941, the plaintiff was riding in an automobile driven by her husband, Dr. B. R. Moore, in a southerly direction along concrete Highway No. 13, about one mile north of Shawnee Mound in Henry County. The pavement was eighteen feet in width. Defendant Bowman was driving his automobile along the same highway in a northerly direction, and Dunfee was driving his car along the highway and in the same direction as Bowman, but to the rear of the Bowman car. Prior to the immediate incidents which caused the collision, all three cars were traveling at approximately the same speed, about forty-five to fifty miles per hour, and each was on its proper side of the road. At that point, the road was approximately level and straight and Dr. Moore and his wife saw the two cars approaching them on their proper side of the highway, and Bowman saw the Moore car meeting him and had also seen the Dunfee car following behind him, and knew it was there on the highway and traveling in the same direction he was. Bowman was intending to go to the home of a Mr. Jackson, which was on the opposite side of the highway, or to Bowman's left. The accident occurred about in front of the Jackson house. The Moore and Dunfee cars collided headon when the Dunfee car suddenly came from behind the Bowman car and onto the part of the pavement where the Moore car was. In describing the facts surrounding the collision, Dr. Moore testified: "We were driving along just as any one would . . . we had seen two cars back to the south, paid very little attention until my attention was called by some brakes making a squealing noise which attracted my attention, and I noticed that the man who was almost stopped, and another man almost to him, and he was trying to stop, and swerved over and got in my way . . . and we come together in a headon. . . . The first thing I noticed about the front car (Bowman's) either it was stopped, or just barely moving; just barely moving . . . The front car was so slow that it was just barely creeping when my eyes came in contact with it. Immediately after that, though, before I got past his car, his wheels was turning faster, immediately after the collision." He said that after the collision the Bowman car was about even with the rear wheels of his car and each on its proper side of the pavement. He estimated the distance between the Bowman car and the Dunfee car when he heard the brakes of the Dunfee car screeching as about twenty-four or twenty-five feet. He estimated the speed of his car and the Bowman car at about forty-five to fifty miles per hour, as they came down the highway approaching each other, and that the Dunfee car was probably traveling four or five miles per hour faster. He had not noticed any particular change in the speed of any of the cars until he heard the screeching of the brakes and when he looked, he saw that the Bowman car was "practically stopped or stopped, one of the two." He further said that the Bowman car was on the pavement at the time of the collision.

Defendant Dunfee was called as a witness by plaintiff and described the accident as follows: "I was driving along there just like everybody else driving along the highway, and when I got pretty close to that accident, fact is, real...