Cardis v. Roessel
| Citation | 186 S.W.2d 753,238 Mo.App. 1234 |
| Parties | Frank Cardis v. O. M. J. Roessel, Nash Kelvinator Sales Corporation, (Nash Motors Division), a Corporation, and Nash Kelvinator Corporation, a Corporation |
| Decision Date | 05 March 1945 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Albert A. Ridge, Judge.
Affirmed.
Hogsett Trippe, Depping & Houts for appellants.
(1) The court erred in refusing instructions D, E and F, directing verdict for the several defendants, requested by defendants at the close of all the evidence. The evidence did not make a case for the jury of failure to warn under the humanitarian doctrine. Guthrie v. City of St. Charles, 347 Mo 1175, 152 S.W.2d 91, 94-5; Shepherd v. C., R. I. & P. Ry Co., 335 Mo. 606, 72 S.W.2d 985, 988; Pentecost v. St. Louis M. B. T. R. R., 334 Mo. 572, 66 S.W.2d 533, 535; Lotta v. K. C. P. S. Co., 342 Mo. 743, 117 S.W.2d 296, 300; Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234, 236; Hutchison v. Thompson, 167 S.W.2d 96, 103; McCoy v. Home Oil & Gas Co. (Mo. App.), 60 S.W.2d 715, 724; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, 604; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847, 850; Wallen v. M. R. & B. T. Ry. (Mo. App.), 267 S.W. 12, 14; Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, 12; State ex rel. Kansas City Southern v. Shain, 340 Mo. 1195, 105 S.W.2d 915, 921; Danzo v. Humfeld (Mo. Sup.), 180 S.W.2d 722, 726; State ex rel. Wabash v. Bland, 313 Mo. 246, 253-4, 281 S.W. 690, 692; Hendrick v. Kurn (Mo. Sup.), 179 S.W.2d 717; Ziegelmeier v. East St. Louis & Suburban Ry., 330 Mo. 1013, 51 S.W.2d 1027; Cavey v. St. Joseph Ry., L., H. & P. Co., 331 Mo. 882, 55 S.W.2d 438; Roberts v. Consolidated Paving & Material Co., 335 Mo. 6, 70 S.W.2d 543, 544; Mahl v. Terrell (Mo. Sup.), 111 S.W.2d 160, 162; Wren v. C., B. & Q. Ry. Co., 44 S.W.2d 241, 244; Dody v. Lonsdale, 158 S.W.2d 203, 207; Alsup v. Henwood (Mo. App.), 137 S.W.2d 586, 589; Freed v. Mason, 137 S.W.2d 673, 678-9; Wells v. Raber, 350 Mo. 586, 166 S.W.2d 1073, 1076. (2) The court erred in giving plaintiff's instruction 1. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 654, 195 S.W. 722; Carlisle v. Tilghmon (Mo. Sup.), 159 S.W.2d 663, 665; And authorities, Point I, supra.
Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.
(1) The court properly overruled the demurrers to the evidence offered by the defendants at the close of the evidence. Cento v. Security Bldg. Co. (Mo. Sup.), 99 S.W.2d 1, 3; Hinds v. Chicago, B. & Q. R. Co., 85 S.W.2d 165, l. c. 169; March v. Pitcairn, 125 S.W.2d 972, l. c. 974; McCormick v. Lowe & Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.2d 866, l. c. 876; Foster v. Kurn, 163 S.W.2d 133, l. c. 136; Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327, l. c. 328, 329; Chastain v. Winston, 347 Mo. 1211, 152 S.W.2d 165, l. c. 168, 169; Cervillo v. Manhattan Oil Co., 226 Mo.App. 1090, 49 S.W.2d 183, l. c. 187; Flynn v. St. Louis Public Service Co. (Mo. App.), 41 S.W.2d 885; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065, l. c. 1068; State ex rel. Sirkin & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50, 55; Thomasson v. Henwood, 235 Mo.App. 1211, 146 S.W.2d 88, l. c. 91; Womack v. Missouri Pac. R. Co., 337 Mo. 1160, 1167, 88 S.W.2d 368, 371; Morhaus v. Hebeler (Mo. App.), 104 S.W.2d 733, l. c. 739; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512, l. c. 514; State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582, 587; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809, l. c. 812; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13, R. 19; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113, 119; Hornbuckle v. McCarty, 295 Mo. 162, 173, 243 S.W. 327, 329; Brown v. Kurn (Mo.), 161 S.W.2d 421, l. c. 422; Raymen v. Galvin (Mo.), 229 S.W. 747, l. c. 750; Althage v. Peoples Motorbus Co., 320 Mo. 598, 8 S.W.2d 924, l. c. 926; Young v. Bacon (Mo. App.), 183 S.W. 1079, l. c. 1081; Berryman v. Peoples Motorbus Co. of St. Louis (Mo. App.), 54 S.W.2d 747, l. c. 750; Gorman v. Franklin (Mo.), 117 S.W.2d 289, l. c. 294; Kent v. Kiel (Mo. App.), 97 S.W.2d 885, l. c. 889. (2) The court did not err in giving plaintiff's instruction I.
This is a suit for damages based on personal injuries received by Frank Cardis, plaintiff, when he was struck by, or collided with, an automobile owned by defendants, Nash Kelvinator Sales Corporation and Nash Kelvinator Corporation, and driven and operated by their agent, defendant, O. M. J. Roessel. Trial to a jury resulted in verdict and judgment for plaintiff in the amount of $ 6000. Defendants appeal.
On the west side of Grand Avenue and on the north side of 18th Street, in Kansas City, is located what is known as the Tankar filling station property. Abutting this property on the north is a three story brick building occupied by Mid-Way Auto Supply Company. Along the west side of Grand Avenue at this point the sidewalk is fifteen feet wide and is traversed by a driveway leading into the filling station, extending from the south line of the Auto Supply Company building to a point about thirty-six feet south thereof. Some twenty-one feet south of the above driveway another driveway leads from Grand Avenue into the filling station. About thirty-one feet west of the west line of Grand Avenue and paralleling the space between the driveways there is a concrete island extending from north to south, upon which is located three gasoline pumps. Some thirty feet south of said island is a rectangular filling station building fronting southeast.
Plaintiff testified to the effect that, at the time of the accident, he was a man in his fifties. Since birth he had been afflicted with a disease of the eyes, known as retinitis pigmentosis, which had grown progressively worse until, at the time of the accident, his side vision was impaired but his front vision was good. At the time of the trial his side vision was almost completely gone and his front vision was seriously impaired. At the time of the accident he was engaged in selling hardware which he personally delivered. He was walking southward on the west side of Grand Avenue, about in the middle of the west half of the sidewalk, about three and a half feet east of the building line, and continued in that general direction and manner until he was struck. He carried a white cane in his left hand and a portfolio in his right. He was walking briskly, head up, looking straight to the front. When he was from ten to fifteen feet south of the Mid-Way Auto Supply Company building he suddenly saw a man, thru the side window of a car, directly in front of him, and was at the same instant struck and knocked down by the car. He did not see or hear the car prior to the above mentioned moment. At the time he was struck he was from ten to fifteen feet south of the Mid-Way Auto Supply Company building and about in the center of the west half of the sidewalk.
The deposition of Mr. Atteberry, an employee of the Tankar filling station, was offered by plaintiff. He stated, in effect, that he was inside the station building looking through the window and saw defendants' car start into the driveway, at which time he also saw plaintiff coming round the corner of the Auto Supply building; that plaintiff was about three or four feet south of the building and about three feet east of the building line; that the car and plaintiff came in contact with each other when the car was about halfway past plaintiff; that plaintiff collided with the side of the car, at the front door, back of the fender; that the car was going at an angle, to the southwest, about fifteen miles per hour, and proceeded twelve or fourteen feet after the collision before coming to a stop; that when he first saw plaintiff he was carrying a white cane in one hand and a brief case in the other, and was walking forward looking at the sidewalk and towards the front; that plaintiff could not see very well.
The deposition of Mr. Stoeltzing, another filling station employee, was offered in evidence by plaintiff. He saw defendants' car come into the station and went out to service it. After it stopped he saw plaintiff lying on the sidewalk, about three feet from the west line thereof, with a white cane beside him. He testified that plaintiff stated that the wind was blowing and he had his head down and was holding his hat on.
Defendant Roessel testified to the effect that he traveled south on Grand Avenue at a rate of speed of fifteen miles per hour that as he turned to go into the driveway, he slowed his car to a stop about from three to five feet east of the curb line, changed gears, and proceeded into and across the driveway at a speed of about six miles per hour, driving in a southwesterly direction; that when he slowed to a stop before entering the driveway he looked to the north and saw plaintiff standing, about a foot north of the south line of the Auto Supply Company building and about one and one-half feet east of said building, with his head turned to the west; that he then looked to the south and saw a man approaching on the sidewalk from that direction some twenty-five feet away; that he changed gears and proceeded straight ahead, southwesterly, and did not thereafter look toward or see plaintiff prior to the collision; that when the front end of the car was past the west line of the sidewalk and the rear end was about the center of the sidewalk he heard a clicking sound which, it developed, was caused by the collision with plaintiff; that he did not make an emergency stop but that he could have stopped, at the rate of speed he was traveling and under the conditions there existing, within three feet; that when he saw plaintiff...
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