Bullmore v. Beeler

• Decision Date: 01 December 1930
• Docket Number: No. 17005.,17005.
• Citation: 33 S.W.2d 161
• Parties: BULLMORE v. BEELER.
• Court: Missouri Court of Appeals

33 S.W.2d 161

BULLMORE v. BEELER.

No. 17005.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Appeal from Circuit Court, Buchanan County; John D. McNeely, Special Judge.

"Not to be officially published."

Action by J. W. Bullmore against Clarence O. Beeler. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Landis & Landis and W. H. Utz, all of St. Joseph, for appellant.

Roy O. Lindsay, of St. Joseph, for respondent.

BOYER, C.

This action is to recover for personal injury alleged to have been caused by the negligence of defendant in the operation of an automobile. Eleven jurors gave plaintiff a verdict for $3,000, judgment followed, defendant duly appealed, and urges in his brief: (1) That plaintiff failed to show that defendant was guilty of any negligence; (2) that instructions in the nature of demurrers should have been given; (3) that plaintiff was guilty of contributory negligence as a matter of law; (4) that instructions numbered 1 and 3 are erroneous; and (5) the verdict is excessive.

To deal properly with the points, and the reasons assigned in support of them, it is necessary to quote some of the pleadings and evidence. The following substantive statements are in the petition:

"For this cause of action plaintiff states that at all times hereafter mentioned the defendant was the owner of an automobile; that on or about the 29th day of December, 1928, the plaintiff, while in the exercise of due and proper care for his safety, was at the intersection of St. Joseph Avenue and Shady Avenue proceeding south on the west side of St. Joseph Avenue and crossing Shady Avenue and while so crossing said Shady Avenue, the defendant then and there driving his said automobile in a southerly direction on St. Joseph Avenue, carelessly and negligently turned his said automobile west off of St. Joseph Avenue onto Shady Avenue without giving any warning whatsoever to this plaintiff who was walking, thereby striking the plaintiff and injuring him, and defendant drove and operated his automobile at a high and dangerous rate of speed as he was coming down St. Joseph Avenue and at the time he was turning on Shady Avenue; that defendant carelessly and negligently failed to give any sign of his intention to turn west on said Shady Avenue, thus causing the plaintiff to be unaware of the approach of said automobile until he was in such close proximity to plaintiff that it was impossible for this defendant to get out of plaintiff's way and that on account of the defendant's careless and negligent operation of said automobile, he caused the said automobile to run into and violently strike this plaintiff inflicting upon him wounds and injuries hereinafter set out.

"Plaintiff further states that at the said time and place he was upon the said street, in the act of crossing said Shady Avenue and in a position of immediate peril by being struck by vehicles being driven in a westerly direction thereupon; that the defendant knew or by the highest degree of care could have seen the plaintiff in said position of peril and could have so seen the plaintiff in time to have stopped his automobile or slackened the speed thereof or changed the course of said automobile, and would thereby have avoided striking the plaintiff, but instead, the defendant carelessly and negligently failed to stop his said automobile or slacken its speed or change the course of it in time to have avoided striking the plaintiff as aforesaid, and that because of the carelessness and negligence in that regard, the plaintiff was struck and injured. * * *"

The answer was a general denial, and "defendant further alleges that plaintiff carelessly and negligently failed to exercise the proper care for his own safety; that he crossed the street in question at the time in question without first looking to see whether there were approaching vehicles; that he failed to keep a watch for vehicles that were traveling or would ordinarily travel in a westerly direction on Shady Avenue; that while in a position of safety, he carelessly and negligently suddenly and without warning, stepped back into a place of danger and that if any injuries were by him received, they were received by such negligence which directly contributed to the injuries complained of in his petition."

The reply denied the new matter.

The evidence shows that the injury to plaintiff occurred in Shady avenue a short distance west of the line of intersection with St. Joseph avenue; that both avenues are paved and public thoroughfares; that St. Joseph avenue at this place extends north and south and Shady avenue east and west.

Plaintiff testified that on December 28, 1928, he was walking south on the west side of St. Joseph avenue, and when he got to Shady avenue he stopped for three or four minutes to watch some cars go by; that two of them were racing down St. Joseph avenue; that, after he stopped, he looked up the street, and did not see any car coming down that he thought would turn into Shady avenue, and started to cross from the north to the south side of it; he did not notice any car at all at that time; that he got about halfway across the street, heard a rumbling noise, looked around, and noticed that a light was right on him; that he thought he would have a better chance to get back to where he started from than to try to make it across; that the car hit him, and that he did not remember anything thereafter; that no horn was sounded by the driver of the automobile; that it was driven by the defendant; at the time it was "kind of dark"; that he was about halfway across when the lights first shone on him; the car was headed right up Shady avenue; it was just making the swing and was headed "kind of southwesterly," and he was struck on the back, above the hip.

He further testified as to the nature and extent of his injuries; the width of Shady avenue is given as about 33 to 36 feet; that St. Joseph avenue is a paved street in which are laid street car tracks, the west one of which is about 18 or 20 feet east of the west curb line of St. Joseph avenue; that he heard the rumbling noise of defendant's automobile as it was coming off the street car track on St. Joseph avenue, looked around, and saw defendant's car lights right on him. The lights were making a swing with the car from the east around to the west when they were thrown upon him. There was nothing to obstruct defendant's view of plaintiff; defendant's car was a little north of the center of Shady avenue when it struck plaintiff; defendant was going south before he turned into Shady avenue.

As to the actual occurrence, one other witness testified that he did not see it, but heard a car strike something and saw plaintiff being picked up; that defendant had stopped his car in 8 or 10 feet; the car was about the center of Shady avenue, and the front of it 12 or 14 feet west of St. Joseph avenue; the wheels slid 6 or 8 feet. Other witnesses testified to the nature and extent of plaintiff's injury and his disability therefrom.

Defendant rested after he offered one witness who testified to the time that plaintiff returned to work. At plaintiff's request, the court permitted him to reopen his case, and he called defendant, who testified that he was going south on St. Joseph avenue, driving a Ford truck along the west car track, and turned into Shady avenue; that he had slowed down his speed while making the turn to about 15 or 20 miles per hour; there was nothing to obstruct his view of plaintiff; that he did not see plaintiff until he was struck; the right front fender and the right head lamp struck him; there was a clock in the drug store on the northwest corner. In answer to questions as to why he did not see plaintiff, he said: "I was probably glancing off at the side for an instant. I probably glanced at the clock for the instant." "I do not remember what I was doing at the time the accident happened." "I did not see him until the car struck him." "When I saw him he was about five or six feet from the curbing, the north curb. My car was headed west. I saw him just at the time of the impact. I don't know what part of his body was struck. After the car struck him, he was on the side of the car. He came up over the fender, then rolled down to the side. The car went probably eight or ten feet after I struck him. I slowed down for the corner, but did not attempt to stop before striking him."

At the close of the evidence, defendant requested a peremptory instruction to find for him, and another directing the jury that there is no evidence of any negligence on the part of defendant. These instructions were denied.

The instructions given on behalf of plaintiff about which complaint is made are numbered 1 and 3, and are as follows:

"The court instructs the jury that it is your duty to find the issues for and return a verdict for the plaintiff if you so find and believe from the evidence as follows:

"That on or about the 29th day of December, 1928, St. Joseph Avenue was a public thoroughfare running in a northerly and southerly direction in the City of St. Joseph, Missouri, and that Shady Avenue was at such time a public thoroughfare in said City of St. Joseph, Missouri, running in an easterly and westerly direction and that said streets intersect each other.

"That on or about the 29th day of December, 1928, the plaintiff, while exercising ordinary care for his own safety, was walking across said Shady Avenue at or...