Davis v. Wyatt

• Decision Date: 14 November 1949
• Docket Number: No. 41225.,41225.
• Citation: 224 S.W.2d 972
• Parties: MABEL A. DAVIS, Administratix of the Estate of FRANK A. DAVIS, Deceased, Appellant, v. J.E. WYATT, Respondent.
• Court: Missouri Supreme Court

224 S.W.2d 972

MABEL A. DAVIS, Administratix of the Estate of FRANK A. DAVIS, Deceased, Appellant, v. J.E. WYATT, Respondent.

No. 41225.

Supreme Court of Missouri.

Division One, November 14, 1949.

Motion for Rehearing or to Transfer to Banc Overruled, December 12, 1949.

Appeal from Jackson Circuit Court; Hon. Thomas R. Hunt, Judge.

AFFIRMED.

Arthur C. Popham, Arthur C. Popham, Jr., Sam Mandell and Harold A. Lockhart for appellant; Popham. Thompson, Popham, Mandell & Trusty of counsel.

The trial court erred in granting defendant's motion for new trial on the sole ground that the issue of "wanton recklessness" should not have been submitted to the jury because the evidence showed defendant's driver, Groomer, drove by the toll house at 40 miles an hour, without warning or signal, in violation of custom of which he was aware, and within two inches of a step or platform on which he knew men would be standing and working, and the evidence thus made "wanton recklessness" a jury issue. Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P. (2d) 980; Atchison, T. & S.F. Ry. Co. v. Baker, 79 Kan. 183, 98 Pac. 804; Blashfield, Cyclopedia of Automobile Law and Practice, sec. 6617.

Henry W. Buck, W.H. Hoffstot, Jr., Martin J. Purcell and Morrison, Nugent, Berger, Hecker & Buck for respondent.

(1) The trial court properly granted defendant a new trial because Groomer's acts did not constitute wanton and reckless conduct under Kansas law. Elliott v. Peters, 163 Kan. 631, 185 Pac. (2d) 139; Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 Pac. (2d) 822; Srajer v. Schwartzman, 164 Kan. 241, 188 Pac. (2d) 971; Baker v. Western Cas. & Sur. Co., 164 Kan. 376, 190 Pac. (2d) 850; Stout v. Gallemore, 138 Kan. 385, 26 Pac. (2d) 573; Blosser v. Wagner, 144 Kan. 318, 59 Pac. (2d) 37; Sayre v. Malcom, 139 Kan. 378, 31 Pac. (2d) 8; Ewing v. Edwards, 140 Kan. 325, 36 Pac. (2d) 1021; Aduddell v. Brighton, 141 Kan. 617, 42 Pac. (2d) 555; Murrell v. Janders, 141 Kan. 906, 44 Pac. (2d) 218; Anderson v. Anderson, 142 Kan. 463, 50 Pac. (2d) 995; Cohee v. Hutson, 143 Kan. 784, 57 Pac. (2d) 35; Donelan v. Wright, 148 Kan. 287, 81 Pac. (2d) 50; Leabo v. Willett, 162 Kan. 236, 175 Pac. (2d) 109; Mason v. Banta, 166 Kan. 445, 201 Pac. (2d) 654; Senning v. Interurban Ry. Co., 101 Kan. 78, 165 Pac. 863; Mo. Pac. Ry. Co. v. Walters, 78 Kan. 39, 96 Pac. 346; Atchison, T. & S.F. Ry. Co. v. Baker, 79 Kan. 183, 98 Pac. 804; Gilbert v. Mo. Pac. Ry. Co., 91 Kan. 711, 139 Pac. 380; 92 Kan. 281, 140 Pac. 883; 92 Kan. 697, 142 Pac. 270; Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 Pac. (2d) 980; Plant v. Thompson, 221 S.W. (2d) 834; Sec. 8-122b, G.S. Kan. (1935). (2) Groomer's acts did not constitute wantonness under the Kansas law and therefore it was error to instruct the jury on this issue. Atchison, T. & S.F. Ry. Co. v. Wells, 56 Kan. 222, 42 Pac. 699; Baker v. Western Cas. & Sur. Co., 164 Kan. 376, 190 Pac. (2d) 850; Bazzell v. Atchison, T. & S.F. Ry. Co., 133 Kan. 483, 300 Pac. 1108; Atchison, T. & S.F. Ry. Co. v. Winston, 56 Kan. 456, 43 Pac. 777; Atchison, T. & S.F. Ry. Co. v. Whitbeck, 57 Kan. 729, 48 Pac. 16; Rose v. St. Louis Pub. Serv. Co., 205 S.W. (2d) 559; Shelton v. Thompson, 353 Mo. 964, 185 S.W. (2d) 777; Rothe v. Hull, 352 Mo. 926, 180 S.W. (2d) 7.

BRADLEY, C.

Action by Frank A. Davis for damages for personal injuries; verdict and judgment went for plaintiff in the sum of $17,500.00 and defendant's motion for a new trial was duly filed. While the motion was pending Frank A. Davis died and Mabel A. Davis, administratrix of the estate of deceased, was substituted as plaintiff. After such substitution the motion for a new trial was sustained and the substituted plaintiff appealed. Hereinafter the term plaintiff has reference to Frank A. Davis, deceased, who was the injured party and the original plaintiff.

The situs of this cause was in Kansas City, Kansas. Fairfax toll bridge extends north and south over the Missouri River from Kansas to Missouri. Plaintiff, an employee of the Kansas highway department, was superintendent of this bridge. Fairfax Road, a north and south paved street in Kansas City, Kansas, extends north to this bridge. The toll house is a short distance south of the bridge; the two 9-foot concrete slabs of Fairfax Road separate as they approach the toll house from the south and then converge after passing; southbound traffic over the bridge pay toll charges on the west side of the toll house and northbound traffic on the east side. The width of the roadway on the east side of the toll house is the 9-foot slab and a gravel shoulder width of which is not given. On the east side of the toll house is a step 5 feet long, 19 inches wide, and 9 to 10 inches high. February 8, 1945, about 5 p.m., plaintiff, according to his evidence, was on this step when struck and injured by a northbound tractor-trailer unit loaded with 2470 gallons of hot oil for delivery to Goetz Brewing Company, a customer of defendant, in St. Joseph, Missouri. The unit was driven by Otis B. Groomer, defendant's agent, we will assume for the purpose of this appeal. There was a stop sign on the east side of Fairfax Road a short distance south of the toll house.

The negligence alleged and submitted was (1) excessive speed; (2) failure to stop at the stop sign; (3) failure to stop at the toll house; and (4) failure to give warning of the approach of the tractor-trailer unit. Among other defenses, not necessary to mention, defendant pleaded contributory negligence of plaintiff; but plaintiff proceeded on the theory that the alleged negligence on the part of defendant's agent Groomer was wanton under the law of Kansas and that contributory negligence was not available as a defense. And for the plaintiff the court instructed the jury: "If you find that Groomer was wantonly reckless and the facts to be as outlined and submitted in instruction No. 1, and if you find the issues for plaintiff under said instruction No. 1, then the fact, if it is a fact, that plaintiff was guilty of contributory negligence would be no defense, even though you may believe plaintiff was guilty of contributory negligence directly contributing to his alleged injuries."

The motion for a new trial was sustained on the ground that the court erred in submitting "the issue of wanton recklessness", and that is the only question presented here.

Plaintiff, as stated, was injured February 8, 1945. He testified: "I had been straightening up the supplies in the toll house; my car was parked directly across the street east from the toll house; U.S. highways 169 and 69 (Fairfax Road there) are heavily used public highways; toll men (collectors) are obliged to stand on this step (the one mentioned, supra); I saw through the south window of the toll house this truck (the tractor-trailer unit) coming from the south. When I was struck I was standing on that little platform (the step) there and was expecting to go across the street to my car; I saw the truck coming so fast I turned, and when I did the front end of the oil part of the truck (the trailer) struck my right arm; the tractor part had gone past me; my arm in turning stuck out enough to get hit; the force of the impact was about the elbow; it crushed the elbow; the impact knocked me off the platform (the step); threw me around and slammed me up against the building; I never lost my feet (did not go down), but I was slammed up against the building (toll house); I staggered out to the center of the highway (the slab east of the toll house); the truck had then gone on (north); the truck did not blow any horn or give any warning as it approached the toll house." Plaintiff's evidence was that the speed of the truck was about 40 miles per hour; that it did not stop at the stop sign, and that the clearance between the truck and the step as the unit passed was about 2 inches.

Defendant obtained hot oil from the Phillips Petroleum Company, Kansas City, Kansas, and delivered it to his customers. The Goetz Brewing Company of St. Joseph, Missouri, was one of his customers. Groomer lived in St. Joseph and for some time had been delivering oil to Goetz Brewing Company for defendant. He used his own tractor attached to defendant's homemade trailer tank. The tractor and the trailer together were termed a unit. Groomer would go from St. Joseph to Phillips Petroleum Company in Kansas City, Kansas; get the trailer tank filled with hot oil and go back to St. Joseph and deliver the oil to Goetz Brewing Company. On these trips down and back to St. Joseph he went over Fairfax Road and over the Fairfax Bridge. Going down he went on the west side of the toll house and returning he went on the east side.

Groomer, as a witness for defendant, testified: "Prior to February 8, 1945 (date of plaintiff's injury), we (truckers such as he) would when southbound give them (at the toll house) two tickets fastened together; they would keep both tickets and we would make our trip on into the refinery; load up and return back and not stop (at the toll house). On the afternoon of February 8, 1945, I had come into Kansas City, Kansas, for a load of fuel oil to be delivered to Goetz Brewery in St. Joseph; as I came in that day I handed the toll taker two tickets; I loaded about 4:30 p.m. and drove out in third gear; I did not stop at the toll house; my speed when I passed the toll house was about 15 or 20 miles per hour; my passing along the east side of the toll house on that afternoon was not different (from my prior passings). After I had passed the toll house and when I had stopped for a stop sign at 69 and 71 junction, a man drove up on my left and said, `Fellow, I don't know; you might be interested to know; something happened back there at Fairfax Bridge'; I said, `what do you mean?' He said, `Well, seemed like there was a fellow hurt there as your trailer went by.' I went on to St. Joe with this load of hot oil; didn't exactly know what to do about it; stopped...