Cox v. Consolidated Cabs, Inc., 22363
| Decision Date | 07 May 1956 |
| Docket Number | No. 22363,22363 |
| Citation | 290 S.W.2d 658 |
| Parties | Daphna E. COX, Respondent, v. CONSOLIDATED CABS, Inc., Appellant. . Missouri |
| Court | Missouri Court of Appeals |
Thomas J. Conway, Kansas City, for appellant.
Albert J. Yonke, C.H. Bryant, Kansas City, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment for $5,000 and defendant has appealed.
On May 16, 1953, plaintiff, Daphna E. Cox, was injured while riding in an automobile driven by her brother, Harrison E. Wheeler. The accident occurred at 13th Street and The Paseo in Kansas City, Missouri, at about midnight. Thirteenth Street runs east and west, The Paseo north and south. Plaintiff was seated on the right-hand side of the back seat, next to a Mr Meek, and Mrs. Harrison E. Wheeler was seated on the right-hand side of the front seat. These four people, along with six or eight other acquaintances went to the Down Beat, a tavern located at 47th and Troost, arriving there about 10:00 p.m. They remained there until about 11:30 p.m. during which time Mr. Wheeler, the driver of the car, drank two highballs. He had previously consumed two similar drinks at his home after dinner. According to the testimony of plaintiff and Mr. and Mrs. Wheeler, they "danced most of the time" they were at the Down Beat. The party left the Down Beat at 11:30 p.m. and headed for the Travelux, another tavern located on Independence Avenue. But when they got to Independence Avenue plaintiff said that she had to work the next day and would like to get home, so Mr. Wheeler turned the car around and started back to The Paseo and proceeded south to 13th Street, where the accident occurred. Wheeler testified that he was not intoxicated and that his car was in perfect mechanical condition.
The Paseo is a two-way street with a parkway in the middle. Mr. Wheeler testified that he was driving south in the lefthand lane next to the center of The Paseo at a speed of 20 to 25 miles per hour approaching 13th Street when a cab owned by the defendant and driven by its agent, Sterling Jones, came up alongside of him on his right or west side at a speed of 30 to 35 miles per hour. Defendant's cab attempted to pass between Wheeler's car and one which was about 25 feet ahead of him and in the next lane to the west. According to the testimony of Wheeler the cab "made a sharp turn in front of me and cut between me and the other car and hooked on to my bumper and fender, that its left hind bumper hooked on my right bumper *** Well, when he hooked on to me, by the--it was so sudden and fast, before I could take my foot off the accelerator and apply my brakes--he was dragging me along there and he dragged me about thirty and thirty-five feet--and when I did tear loose I was so close to this light post it just threw me into the light post." Under the testimony of plaintiff, as well as that of both Mr. and Mrs. Wheeler, the sudden turn of the cab was made without any signal or warning whatever. As a result of the impact of the Wheeler car with the lamp post plaintiff was thrown to the floor of the car and injured.
In view of the fact that no contention is here made that plaintiff did not make a submissible case or that the verdict is excessive, we need not further detail the evidence.
Defendant's first contention is that Instruction I given on behalf of plaintiff is erroneous for the reason it assumes controverted issues.
The instruction told the jury that "if you believe and find from all the evidence" that plaintiff was riding as a passenger in an automobile then being driven south on The Paseo and that at that time defendant's taxicab was also being driven south on The Paseo near its intersection with 13th Street by its agent, Sterling Jones" *** and that said automobile in which plaintiff was riding was being operated in the left lane or the lane nearest the east curb of the southbound lane of The Paseo, and that said automobile was then so close to the rear of an automobile being operated in a southerly direction in the west lane, or lane nearest the parked cars, that it was or should have been reasonably apparent to said Jones in the exercise of the highest degree of care that he could not pass between said automobile in which plaintiff was riding and the said automobile being operated ahead and to the right of the automobile in which plaintiff was riding and that it was, or should have been apparent to Jones, in the exercise of the highest degree of care that there was a danger of a collision between said taxicab and the automobile in which plaintiff was riding unless he took precaution to prevent such a collision;
"And if you further find that said Jones, thereafter failing to exercise the highest degree of care, suddenly turned and swerved the said taxicab to the left in front of the automobile in which plaintiff was riding without warning at a time when it was or should have been reasonably apparent to said Jones, in the exercise of the highest degree of care that there was danger of a collision, and said Jones was thereby negligent, if you so find the facts to be; and that the direct and proximate result of such negligence of Jones, while acting for and on behalf of the defendant, Consolidated Cabs, Inc., as aforesaid, said taxicab came into collision with said automobile in which plaintiff was riding and thereafter caused said automobile to come into collision with a pole, if you so find and plaintiff was thereby injured, if you so find, then your verdict should be for plaintiff and against defendant, Consolidated Cabs, Inc."
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