Day v. Banks
| Decision Date | 02 March 1937 |
| Docket Number | 23856 |
| Citation | 102 S.W.2d 946 |
| Parties | JAMES F. DAY, (Plaintiff) Respondent, v. J. W. BANKS, (Defendant) Appellant, and A. B. F. MOTOR FREIGHT COMPANY, a corporation, Defendant |
| Court | Missouri Court of Appeals |
March 26, 1937 Appellant's Motion for Rehearing overruled. March 26, 1937 Opinion modified by Court of its own motion. February 7, 1939 Record and opinion quashed by Supreme Court on Petition to Writ of Certiorari.
Appeal from the Circuit Court, St. Louis County, Missouri. Hon Robert W. McElhinney, Judge.
AFFIRMED.
Edward J. McCullen
This suit was brought by James F. Day, respondent, hereinafter referred to as plaintiff, to recover damages for injuries to his own person and damages for the death of his wife, Lydia Day. The case was tried before the court and a jury and resulted in a verdict and judgment for plaintiff against J W. Banks, appellant, on the first count of plaintiff's amended petition in the sum of $1500.00, and for plaintiff against said J. W. Banks in the sum of $5000.00 on the second count of said petition. Under a peremptory instruction given by the court at the request of defendant A. B. F. Motor Freight Company, the verdict was against plaintiff and in favor of said defendant on both counts of plaintiff's petition. From the judgment entered in favor of plaintiff against J.W. Banks, that defendant brings the case to this court by appeal. The defendant A. B. F. Motor Freight Company is not involved in this appeal.
In the first count of his amended petition, plaintiff claimed damages for injuries sustained by him on January 22, 1924, when a truck belonging to defendant Banks, operated by his employee Robert Brockman, ran into an automobile which was standing still on Highway No. 66 in St. Louis County, in which plaintiff and his late wife, Lydia Day, were seated.
In the second count of said amended petition plaintiff sought damages for the death of his wife, Lydia Day, alleging that her death was the direct result of the injuries which she sustained on the occasion mentioned.
The negligence alleged in each of the two counts of the petition was: (1) Operation of the automobile truck at a high, excessive, unreasonable and dangerous rate of speed. (2) Failure to sound any warning of the approach of the automobile truck. (3) Failure to keep a lookout, when, by the exercise of the highest degree of care, defendants would have discovered the automobile in which plaintiff and his wife were seated, in time to have avoided the collision. (4) Negligence under the humanitarian doctrine in having failed to stop said automobile truck or slackened the speed thereof or swerved the same or given warning of its approach. (5) Failure to operate the automobile truck in a careful and prudent manner.
Defendant J. W. Banks filed a separate amended answer-denying generally the allegations in plaintiff's petition, and as to the first count thereof defendant alleged that plaintiff's injuries were immediately, directly and solely caused and contributed to by plaintiff's negligence in that he placed himself in the automobile mentioned while it was stopped and parked upon the highway at night without any rear or tail light burning, and directly in the path of defendants' automobile truck, when plaintiff knew*, or by the exercise of ordinary cure could have known, that he and said automobile were in a position of danger.
Answering the second count of plaintiff's petition, defendant Banks averred that whatever injuries were sustained by plaintiff's wife were immediately, directly and solely caused and contributed to by plaintiff's negligence in that he caused and permitted his wife to remain seated in the automobile while it was stopped and parked upon the highway at night without any rear or tail light burning, and directly in the path of defendants' automobile truck.
Defendant Banks further alleged that the injuries to plaintiff's wife were directly caused and contributed to by her negligence in remaining seated in the automobile while it was parked on the highway in the night time without red lights or tail light burning on the rear thereof. Plaintiff's reply to the separate amended answer of defendant Banks was a general denial.
The first contention of defendant Banks is that the court erred in overruling his instructions in the nature of demurrers to the evidence as to both counts of the petition.
The evidence shows that on January 22, 1934, shortly after ten o'clock P.M., plaintiff and his late wife, Lydia Day, with their soil, Silver Day, and Rosella Day, the son's wife, were riding in a Hupmobile sedan on Highway No. 66 in St. Louis County when the motor of the automobile stopped running. The automobile belonged to Silver Day, who was operating it at the time. Silver Day tried to keep the motor running while the car was yet moving, but was unable to do so. The automobile was traveling westwardly on the highway when the motor trouble occurred. Immediately after the motor had ceased running, Silver Day guided the car to the right or north side of the road as far as he could without getting it off the concrete slab. When it came to a stop, the automobile was about one half mile west of Sappington Road on the north side of the highway, with its two right wheels off the concrete slab of the highway and resting on the shoulder to the north thereof, while its two left wheels were on the concrete slab and about two feet from the edge thereof. The highway at that point was a four lane traffic highway, two lanes thereof to the north of the middle line being used by westbound traffic and two lanes thereof to the south of the middle line being used by eastbound traffic. The highway was about forty feet wide over all and was made of concrete. There was evidence that it had been raining during that day but 'that it was a clear moonlight night; that the highway was dry but that the shoulder to the north of the highway was wet and muddy. After the automobile came to a stop, plaintiff and Silver Day got out to look for the cause of the motor trouble and plaintiff held a flash light while his son, Silver Day, raised the hood of the car and looked at the motor. They were unable to get the automobile started and Silver Day said he would go to try to get help. He testified that he left the place where the car was stopped to get help and walked east along the highway to the closest filling station, which was about half a mile to the east; that after he had reached a point about one hundred yards to the east of the please where the automobile was stopped, he looked back and "saw positively the tail light was on and it was lit."
Plaintiff testified that after Silver Day had gone for help, he (plaintiff) walked around the automobile and that the dashboard, lights, the parking lights and the tail light on the car were lit. After about three or four minutes, plaintiff got back into the front seat of the automobile. His son's wife Rosella in the meantime had changed from the front seat to the left rear seat along side of plaintiff's wife, who was seated on the right rear seat. Plaintiff leaned back and talked to his wife and his son's wife as they were seated in the rear seat of the automobile. After they had sat there about two or three minutes, defendants' truck came along and ran Into the rear end of the automobile. Plaintiff did not know how far the truck drove the Hupmobile and did not know just what happened. He did not see the truck before the accident. After the truck struck the Hup mobile, plaintiff and his wife got out of It and plaintiff saw that the truck was up against the back of the automobile. Plaintiff estimated that the Hupmobile had been pushed about thirty-five feet. Plaintiff testified that his wife "complained terribly" after she got out of the car and that he himself suffered a fractured jaw which, at the time of the trial, still bothered him at times.
Lloyd Haberstroh, a deputy constable of Carondelet Township, St. Louis County, arrived at the scene shortly after the collision and found the Hupmobile sedan "with a truck tied right into it." He testified that Highway 66 at that point runs east and west; that it has four traffic lanes with a line in the center and two lanes on each side of the center divided by lines; that the Hupmobile was facing southwest on about half of the first lane and about half of the second; that the truck was pushed into the back end of the Hupmobile on the left side and that a part of the rear end of the Hupmobile was pushed up to the front seat; that the highway is straight for three quarters of a mile or a mile east of where the truck and the Hupmobile were standing; that the road at that point "takes a dip" and goes on an incline west, on "a slight incline up." He testified that he observed skid marks of the Hupmobile on the highway where it had been pushed and that they appeared to be fifty to sixty feet long; that the left skid mark was about eight to ten feet longer than the right; that the left wheel approximately started anywhere from two to three feet from the north side of the concrete and the right wheel started up about ten feet further west on the concrete; that the right wheel mark started approximately two or three feet from the end of the concrete; that the skid marks extended through the rear wheels of the Hupmobile and extended back; that the shoulder of the highway was muddy and wet.
Silver Day's testimony as to the skid marks of the Hupmobile on the highway was practically the same as that of deputy constable Haberstroh.
Plaintiff his wife, his son and the son's wife were all taken from the scene of the collision to the St. Louis County Hospital where plaintiff's wife remained until ...
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