Clark v. Prue

• Decision Date: 05 May 1941
• Docket Number: No. 19850.,19850.
• Parties: CLARK v. PRUE et al.
• Court: Missouri Court of Appeals

151 S.W.2d 487

CLARK v. PRUE et al.

No. 19850.

Kansas City Court of Appeals. Missouri.

May 5, 1941.

Rehearing Denied May 26, 1941.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

"Not to be published in State Reports."

Action for personal injuries by Peryn Clark against Gustus E. Prue and the De Witt Chevrolet Company. Plaintiff recovered a verdict and judgment against defendant Prue, and, from a judgment refusing to set aside an involuntary nonsuit which plaintiff took as against the DeWitt Chevrolet Company, plaintiff appeals.

Affirmed.

Gossett, Ellis, Dietrich & Tyler, of Kansas City, for appellant.

Mosman, Rogers & Bell, of Kansas City, for respondents.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $7500 against the defendant, Gustus E. Prue, and the latter has taken no appeal.

At the close of all of the evidence the court indicated that it would give an instruction in the nature of a demurrer to the evidence, offered by the defendant, DeWitt Chevrolet Company. Thereupon, the plaintiff took an involuntary nonsuit and having, unsuccessfully moved to set the same aside, has appealed.

Plaintiff was injured on July 19, 1934, while riding upon a water wagon drawn by a team of mules. He was assisting one Louie Saunders, the owner and driver of the wagon, in hauling water, when a 1934 Chevrolet automobile owned by the defendant, DeWitt Chevrolet Company, and being driven by the defendant, Prue, collided with the rear end of the wagon, resulting in personal injuries to the plaintiff.

This is a companion case to that of Louie Saunders v. Prue et al., 151 S.W.2d 478, decided at this term of court, but not yet reported. The facts in the two cases are substantially the same save as to some minor respects, to be hereinafter mentioned. Consequently, it will be unnecessary to again set out the facts in detail.

In the case at bar, Prue, on behalf of plaintiff, testified that when he was about 100 feet (later he said 40 or 50 feet) to the rear of the wagon he tried to stop the car he was driving by putting his foot on the brake and that he "shoved it (the brake) just down just as far as I could, and it didn't seem like it took hold at all."

It was also developed in the trial of the case at bar, by direct evidence, that there was no speedometer on the 1925 Model T Ford which Prue owned and that he judged its speed largely by the vibration and noise it made when driven.

Plaintiff contends that the court erred in overruling his motion to set aside the involuntary nonsuit and, in this connection, makes the same points as were made by the plaintiff in the Saunders case. In connection with the point that there was evidence from which the jury could infer that, when Prue said he put his foot upon the brake pedal, he actually put his foot on the accelerator, plaintiff calls our attention to the evidence developed in the case at bar to the effect that when Prue shoved down the brake pedal "it didn't seem like it took hold at all." However, we feel that if any inference can be drawn from this testimony it is that there was something defective about the brake. There is certainly nothing in the evidence from which the jury could reasonably infer that he placed his foot upon the accelerator. There is no claim made in the briefs that the defendant, DeWitt Chevrolet Company, was negligent in furnishing Prue a car with defective brakes.

However, plaintiff contends that the court erred in excluding certain evidence offered by it and, of course, if plaintiff offered competent evidence, which was ruled out, we may consider such evidence as in the case in connection with ruling upon the propriety of the action of the court in holding that plaintiff had not made out a case for...