Chilcutt v. Le Clair

• Decision Date: 05 July 1938
• Docket Number: No. 5893.,5893.
• Citation: 119 S.W.2d 1
• Parties: CHILCUTT v. LE CLAIR.
• Court: Missouri Court of Appeals

119 S.W.2d 1

CHILCUTT v. LE CLAIR.

No. 5893.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Rehearing Denied August 10, 1938.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

"Not to be published in State Reports."

Action by C. A. Chilcutt against George LeClair, doing business under the firm and style name of the LeClair Trucking Company, for injuries received when automobile in which plaintiff was riding was struck by defendant's truck. Verdict for plaintiff and from an order granting the defendant's motion for a new trial, plaintiff appeals.

Affirmed.

F. P. Sizer and Wm. J. B. Myres, both of Monett, and Herman Pufahl, of Bolivar, for appellant.

Harold T. Lincoln and F. W. Barrett, both of Springfield, and Tom Douglas, of Bolivar, for respondent.

SMITH, Judge.

On the 13th day of December, 1935, there was filed in the office of the clerk of the Circuit Court of Webster County, a petition for damages wherein the appellant, hereinafter referred to as plaintiff sought damages in the sum of $50,000 against the defendant for personal injuries to the plaintiff while riding as a guest in a car coming from St. Louis on Highway 66. The injuries being occasioned by the alleged negligent conduct of defendant's agent and servant in operating a truck owned by defendant. The negligence and injury to the plaintiff are described as follows:

"That the said LeClair truck, owned by the defendant, George LeClair, was being operated by one, Bill Stallons, as an employee, agent and servant of the said defendant, George LeClair. Said agent, servant and employee was operating said truck in the course of his employment and performing the duties of his employment under the direction of the said defendant, George LeClair, which truck was being driven by said Bill Stallons, agent of the aforesaid defendant, on said highway at said point in an easterly direction going in the direction of St. Louis; that said truck was being driven east towards a sharp curve on said Highway 66 at said place, as the automobile in which plaintiff was riding as a guest was being driven in a westerly direction approaching said curve; that the agent of the defendant in charge of the defendant's freight truck, was driving same at a dangerous, high and excessive rate of speed as he approached and rounded said curve; that in rounding said curve, he cut in on to the north side of the slab of the said highway on the side where plaintiff was riding in the Brower car, and when he was discovered approaching the curve on the wrong side of said highway, Claude Brower, who was driving the Ford Coupe in which plaintiff was riding as a guest, pulled over to the north side of said highway off of the concrete slab before reaching the point of the curve in order to get out of the way of defendant's fast approaching truck, being then and there operated on the wrong side of said highway; that before said coupe was brought to a stop on the north side and off of the slab of said highway, said driver of defendant's said freight truck, being on the wrong or north side of the middle line of the slab on highway 66, collided with another car being driven in a westerly direction some distance west, and ahead of the Ford Coupe in which plaintiff was riding as a guest; that on account of the negligence of the driver of defendant's freight truck, in running at an excessive and dangerous rate of speed around said curve and on the wrong side of the middle line on said highway, without keeping a vigilant lookout, his truck then and there collided with the truck going in a westerly direction, and ahead of the plaintiff, with such great force and violence, that said truck was turned and deflected to one side and ran a long distance with its gasoline line broken and in a flame of fire, and ran off of the highway on the north side where the Ford Coupe, in which plaintiff was seated, was standing, and struck said Ford Coupe and this plaintiff with such great force and violence that said Ford Coupe was set on fire and said freight truck of the defendant was piled on top of said Ford Coupe and plaintiff received the following injuries, to-wit:

"That his head and face was lacerated and cut. The muscles, ligaments, tendons and nerves and fibres of the head and face and entire body was lacerated, bruised, torn and injured; that his hip and hip bones, and the hip sockets, the pelvic girdle and sacro iliac joints were fractured, injured, impaired, and dislocated; that the bones in plaintiff's legs and knees and knee joints were broken, fractured and injured; that plaintiff's back and spine was injured and dislocated; that his entire nervous system was shocked and impaired and the vital organs of his body, his heart, liver, kidneys, intestines, bladder, were shocked, dislocated, injured and impaired so that they fail to properly function; that he received severe concussion of the brain and he was rendered unconscious a long time and became sick and sore and has suffered great pain and anguish of mind and body ever since.

"Plaintiff states his injuries are permanent in their nature, character and extent, and he will suffer great pain and anguish of mind and body as long as he lives. Plaintiff states that he was confined to the hospital for a long time and to his bed at his home for many weeks and has, during all the time, suffered intense pain and anguish of mind and body. Plaintiff states one leg is shorter than the other, and that portions of his body, limbs and arms have become numb and paralyzed as a direct result of said injuries.

"Plaintiff states that at the time of receiving his injuries he was an able bodied man, in the prime of life, and was earning large sums of money per month and per annum, and that by reason of said injuries he has lost all of his earnings to the present time, and has been unable to carry on his large and extensive activities in his farming, and states that his injuries are permanent in the nature, character and extent, and he will lose all of his earnings in the future, as his earning capacity has been greatly diminished, if not totally destroyed.

"Plaintiff states that by reason of his injuries he has expended large sums of money for medicine, medical attention, doctor bills, hospital bills, and will in the future be compelled to expend large sums of money for medicine, medical attention, doctor bills and hospital bills as a direct result of said injuries.

"Plaintiff states that his injuries, as aforesaid, were directly caused by reason of the negligence of the defendant's agent, servant and employee, in the following manner and to-wit:

"(a) Negligently and carelessly failing to exercise the highest degree of care as required by the Statutes of Missouri in that defendant's agent, servant and employee, while in the line of duty, ran said car around the curve on said highway at a dangerous and reckless rate of speed.

"(b) Negligently and carelessly failing to exercise the highest degree of care in that said freight truck was being run and operated on the wrong side of said highway and to the north of the middle line on said highway.

"(c) Negligently and carelessly failing to exercise the highest degree of care to keep a vigilant lookout for automobiles approaching said curve and the defendant's agent, servant and employee in charge of said truck knew, or by the exercise of ordinary care, could have known that other cars were approaching said curve on said highway and by the exercise of the highest degree of care, could have kept on the south side of said highway and could have had said motor truck under control and could have slackened the speed thereof, or swerved it to one side and thereby avoided striking said smaller truck, and could have avoided striking and injuring plaintiff."

The answer was a general denial. By agreement of the parties the cause was transferred to Polk County where a trial to a jury on March 11, 1937, resulted in a verdict of $7,500.

Motion for a new trial was filed...