Day v. Banks

• Decision Date: 11 September 1940
• Docket Number: No. 25535.,25535.
• Citation: 143 S.W.2d 68
• Court: Missouri Court of Appeals
• Parties: DAY v. BANKS.

143 S.W.2d 68

DAY v. BANKS.

No. 25535.

St. Louis Court of Appeals. Missouri.

September 11, 1940.

Rehearing Denied September 25, 1940.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be reported in State Reports."

Suit by Rosella Day against J. W. Banks for injuries sustained by plaintiff when stalled automobile in which plaintiff was a passenger was struck by defendant's truck. From a judgment on a verdict for plaintiff for $6,100, defendant appeals.

Affirmed.

Strubinger, Tudor & Tombrink, of St. Louis, and Russell Garnett, of Warrensburg for appellant.

Everett Hullverson, of St. Louis, for respondent.

McCULLEN, Judge.

This suit for damages for personal injuries is before this court for the second time on appeal. The first trial resulted in a verdict and judgment for $3,500 in favor of respondent, who will be referred to as plaintiff, and against appellant Banks, who will be referred to as defendant, and in favor of A. B. F. Motor Freight Company, a corporation, which company was also a defendant in the original suit.

On appeal by Banks, this court affirmed the judgment. See Day v. Banks et al., Mo.App., 102 S.W.2d 955. Banks thereafter took the case to the Supreme Court on certiorari, where a part of this court's opinion relating to an instruction was quashed. See State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835.

Thereafter, on May 19, 1939, plaintiff filed in the Circuit Court a second amended petition, not naming A. B. F. Motor Freight Company a defendant, to which defendant Banks filed an amended answer. The trial, against defendant Banks alone, resulted in a verdict on November 1, 1939, in favor of plaintiff and against defendant Banks in the sum of $6,100. From the judgment entered on said verdict defendant duly took the appeal which is now before us.

Plaintiff's second amended petition alleged that, on January 22, 1934, plaintiff was seated in an automobile which was standing still, facing westwardly on U. S. Highway No. 66 near Sappington Road in St. Louis County, Missouri, when said automobile was struck by an automobile truck owned and operated by defendant's agent and chauffeur westwardly along said highway, whereby plaintiff was caused to be severely injured as the direct result of the negligence of defendant, his agent and chauffeur.

Plaintiff's petition contained five assignments of negligence, all of which, however, were abandoned by plaintiff except number four, which was based upon the humanitarian doctrine charging defendant's negligent failure to have stopped said automobile truck, or slackened the speed thereof, or swerved the same, or given warning of its approach or movement.

The amended answer of defendant contained a general denial coupled with allegations of contributory negligence on the part of plaintiff charging that, on the occasion mentioned, plaintiff remained sitting in the automobile in which she was riding while it was stopped and parked on the used portion of the highway in the nighttime and without any red light or other lights burning on the rear thereof to give warning to other automobiles using the highway. Defendant further alleged that plaintiff had settled and compromised her cause of action with the A. B. F. Motor Freight Company, a corporation, a former codefendant in the case, for the sum of $2,000, and therefore received full and complete satisfaction for her alleged cause of action.

The reply of plaintiff was a general denial.

The evidence shows that about 10:00 p. m. on January, 22, 1934, the automobile truck in question was being driven westwardly in the outer north traffic lane of Highway No. 66 near Sappington Road in St. Louis County when it crashed into the rear-end of Mr. Silver Day's Hupmobile sedan which was standing still straddling the outer edge of the northern traffic lane; that the slab of the highway at the point of the accident was four traffic lanes in width, two of which were for westbound traffic and two for eastbound traffic.

The evidence further shows that prior to the accident Mr. James F. Day and his wife, Lydia Day (since deceased), together with their son, Silver Day, and his wife Rosella Day, plaintiff herein, were riding along said highway near the road mentioned when the motor of their automobile stopped running. The automobile had been traveling westwardly on the highway, and Silver Day, who was operating it, guided it to the north side of the highway where it came to a stop partially on the concrete slab of the highway and partially on the dirt shoulder thereof. The two right wheels were about two feet off the concrete and on the mud shoulder, with the two left wheels on the concrete slab. Silver Day got out of his automobile to look for the cause of the motor trouble but was unable to get the automobile started, whereupon he decided to go for help, and walked eastwardly on the highway to a filling station about a half mile from where the Day automobile was parked.

Silver Day testified that, when he started to walk back to the filling station, all the lights of his automobile were on, the two lights in front and the one tail light in the rear; that, after he had walked about a quarter of a mile, he looked back and could see the whole outline as well as the lighted tail light of his automobile. He proceeded on to the filling station and while there a man drove in from whom he learned that his automobile "had been all torn to pieces down the highway". He went back to the scene of the accident in the man's car, and when he got there found that "this big truck had crashed into the back of my car and made a total wreck of my car and pushed it off the position it had been in."

Mr. James F. Day gave testimony corroborating that of Silver Day with respect to the trouble with the motor of the Day automobile, and said that Silver Day pulled up to the right of the road as far as he could; that the tail light and the front lights on, the automobile were burning; that there was no change in the condition of the lights of the automobile while Silver Day was gone for help after the Day automobile was parked, and that all the lights were burning at the time the collision occurred; that there was no warning given of the approach of the automobile truck; that their automobile was hit very hard by the truck and was pushed about thirty-five feet; that, as a result of the collision, his jaw was broken; that Rosella Day, plaintiff, was knocked unconscious in the Day automobile.

Rosella Day, plaintiff herein, testified that she was knocked unconscious and had a lapse of memory and did not know anything about what took place on the night the accident occurred; that her mind was a blank for about two days. She testified at length as to her injuries and the treatment received for them, but, since there is no question raised in this appeal about the injuries, it is unnecessary to go into details on that subject.

Mr. James F. Day, Mrs. James F. Day and Rosella Day, plaintiff, were taken to the St. Louis County Hospital shortly after the collision by a passing motorist.

Lloyd Haberstroh, a deputy constable of Carondelet Township, St. Louis County, at the time of the accident, testified that he answered a radio call at about 10:20 p. m. concerning the accident, and found that it had occurred about half a mile west of Sappington Road on Highway 66; that, on arriving at the scene, he found the truck was stuck into the back end of the Day sedan and the back end of the sedan was pushed up to the front seat; that he looked on the road and there were tracks following the Day sedan's wheels, skid marks about fifty or sixty feet; that the left wheel skid marks were five to eight or nine feet longer than those of the right wheel; that the skid mark started from one to three feet from the edge of the highway; that the shoulders of the highway were wet at the time; that the Hupmobile sedan was in the middle of the first and second lane on the north side of the highway; that the shoulder of the highway was slippery and muddy.

Silver Day, plaintiff's husband, gave further testimony to the effect that when he got back to the automobile, after having gone to the filling station, he found that his mother and father had gotten out of the car somehow and were leaning against the right front fender of the automobile; that his wife, plaintiff herein, was inside the car among the debris; that the truck had caved the whole back of his car in; that it had torn the back of the seat loose and had torn the whole front seat loose; that the seats were all jumbled together; that everything was piled together, and that his wife was right in the bottom of it, and that she was unconscious; that his father, his mother and his wife were taken to the hospital; that his mother stayed in the hospital until the 2nd of February, 1934, when she was taken home, and later taken to the Deaconness Hospital where she died on February 22, 1934.

The evidence on behalf of defendant shows that the truck was loaded with glass bottles which were being moved at the time from Alton, Illinois, to Kansas City, Missouri, under a travel order issued to the A. B. F. Motor Freight Company under said company's permit No. T 2394 of the Public Service Commission of Missouri; that defendant Banks had no interstate permit; that as the truck was being driven westwardly in the outer north lane immediately prior to the collision, it was moving at about twenty-five or thirty miles an hour; that, as it came toward the point of collision, the driver of the truck was blinded by bright lights of an automobile approaching from the west, and that the lights shown diagonally at the truck driver; that, at the moment the truck driver saw the Day automobile ahead of the truck in the north lane, the car with the blinding lights was "just past the Day car, a little bit" and to the left of the truck so that it wouldn't miss the truck over "a couple or three feet"; that...