Burton v. Joyce

• Citation: 22 S.W.2d 890
• Decision Date: 07 January 1930
• Docket Number: No. 20939.,20939.
• Parties: BURTON v. JOYCE.
• Court: Court of Appeal of Missouri (US)

22 S.W.2d 890

BURTON v. JOYCE.

No. 20939.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by Randolph C. Burton against Andrew T. Joyce. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Wilbur C. Schwartz, of St. Louis, for appellant.

Strubinger & Tudor, of St. Louis, for respondent.

BECKER, J.

Plaintiff, in his action for damages for personal injuries alleged to have been sustained while he was riding a motorcycle westwardly on Manchester avenue, in St. Louis county, Mo., by being run into by an automobile driven by defendant, shortly after 8 o'clock at night on the 27th day of July, 1926, received a verdict at the hands of the jury in the sum of $2,300. From the resulting judgment, defendant in due course appeals.

Plaintiff's third amended petition, on which the case was tried, contains seven assignments of primary negligence, besides endeavoring to hold the defendant under the humanitarian doctrine. The defendant, at the close of the case, asked specific withdrawal instructions as to each of the assignments of negligence set out in plaintiff's petition, each of which was overruled. Plaintiff submitted his case to the jury upon a single instruction on the measure of damages.

Our reading of the record discloses that, while plaintiff clearly made out a case for the jury on certain of his assignments of primary negligence, yet he wholly failed to make out a case under the humanitarian doctrine.

In the light most favorable to plaintiff there is evidence tending to prove that plaintiff, on the night in question, was riding on a motorcycle westwardly along Manchester avenue immediately east of its intersection with Lyle avenue in St. Louis county. A single row of automobiles was parked next to the curb on either side of Manchester avenue at the point in question. There was one line of traffic eastbound and one line of traffic west-bound. Plaintiff was riding some 10 or 12 feet behind an automobile and somewhat to the north of the left rear fender thereof, proceeding at 15 or 18 miles per hour, when, according to plaintiff, he saw defendant in a Ford coupé, distant some 10 or 12 feet, "dart out" from the line of cars that was proceeding eastwardly, and make directly for him. Plaintiff endeavored to turn his motorcycle so as to avoid the impact, but was unable to do so, and defendant's automobile and plaintiff's motorcycle collided head-on, causing plaintiff injuries. As plaintiff, in his direct examination put it, "the first thing I knew was a pair of headlights pop out of the eastbound traffic right at me."

In answer to the question: "When you first saw these headlights, were they directly in front of you? he answered: "Well, they came out just like that; it was awfully fast. It came out of the regular line of traffic. It all happened in an instant; it came right out in my line of traffic and the traffic that was ahead of me."

We quote the following from his cross-examination:

"Q. How far were you away from him when you first saw him? A. He was right on top of me."

"Q. You were watching ahead of you? A. I was about 12 feet east of this car and he just pulled out like that. * * *"

"Q. How far was Joyce from you when he started to pull out? A. Well, I should judge he was right on top of me."

"Q. Well, how much space was there between you and the two lines of traffic? Would you say about 5 or 6 feet? A. I would say 5 or 6 feet, yes."

"Q. And you were about two feet inside of this other car, weren't you? A. Yes, sir."

"Q. That would make it about 6 or 8 feet. He turned from behind the line of traffic 8 feet over to you? A. Yes."

"Q. And you were 10 feet behind the other automobile going about 18 or 20 miles an hour? A. About that."

"Q. He didn't jump over there, did he, Mr. Burton? A. He hopped right out in front of me I'll tell you that."

"Q. You state he was going about 18 miles an hour? A. 15 or 18. I didn't see his speedometer." * * *

"Q. How far was he from you when he turned? A. Right on top of me."

"Q. Well, how far, 2 feet? * * * A. He came out in a flash."

Thomas James, a witness adduced on behalf of plaintiff, testified he was an eyewitness, and gave it as his opinion that the distance between Joyce and Burton at the time Joyce pulled out of the line of cars proceeding eastwardly was about 10 feet. This witness, however, gave no testimony as to the speed that either defendant's automobile or plaintiff's motorcycle was going at the time.

Roger H. Stephens testified that he was accompanying plaintiff at the time, riding a motorcycle, and was some 50 to 75 feet behind Burton; that "all of a sudden I saw a machine come out and saw a crash and saw Mr. Burton roll in the street." This witness gave Burton's speed at the time at about 15 miles per hour. "Q. It happened within two or three seconds after you saw this machine turn out? A. Yes, it happened awful fast. I saw the machine come out and it hit like that and Mr. Burton was thrown off the motorcycle."

Defendant's version is that he was traveling some 12 or 15 miles an hour some 10 or 12 feet in the rear of a car, traveling eastwardly on Manchester avenue; that he suddenly saw the glare of the headlights of plaintiff's motorcycle coming toward him, distant some 10 or 12 feet; that he tried to stop his car, but was not able to prevent the collision. "Q. You didn't see Mr. Burton until you turned out and the thing happened in a flash you state? A. That is what I said."

On cross-examination defendant stated that there were two lines of traffic moving eastwardly; that he was originally on the inside line, and was endeavoring to get in the line farther north at the time the accident occurred....