Dillenschneider v. Campbell
| Decision Date | 02 October 1961 |
| Docket Number | No. 23287,23287 |
| Citation | 350 S.W.2d 260 |
| Parties | Ella DILLENSCHNEIDER, Plaintiff-Respondent, v. Leonard CAMPBELL, J. D. Williams, and Consolidated Cabs, Inc. a Corporation, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Donald E. Willson, Thos. J. Conway, Jr., Popham, Thompson, Popham, Trusty & Conway, Kansas City, for appellants.
Robert M. Fox, Claude M. McFarland, Kansas City, for respondent.
This case arose out of an intersectional collision in Kansas City between an automobile driven by plaintiff's husband, Willie Dillenschneider, and a taxicab operated for defendants, Consolidated Cabs, Inc., and J. D. Williams, by defendant, Leonard Campbell.
The plaintiff, a sixty-two year old housewife, was a passenger in the right front seat of her sixty-six year old husband's 1957 Dodge automobile which was proceeding east on 42nd Street.The taxicab was proceeding in a northerly direction on Agnes Street.The two vehicles collided near and just east of the center of the intersection of the two streets, and plaintiff was injured.
The trial to the jury in which the plaintiff received a $2,500 verdict and judgment was not without difficulties.Both the plaintiff and her husband are deaf and dumb.The testimony of both was given through a sign language interpreter.Prior to this accident and until his stroke plaintiff's husband, although a deaf mute, had been gainfully employed, apparently able-bodied, and had been driving a car since 1920 without accident, according to the testimony.But he suffered a stroke after (and unrelated to) this accident and before the trial, leaving his memory impaired, and he was unable to recall many essential facts concerning the accident.
On this appeal defendants-appellants raise three contentions of error.We shall refer to the pertinent evidence as each contention is discussed.
First, defendants say their motion for a directed verdict at the close of plaintiff's case and at the close of all the evidence should have been granted because by plaintiff's own evidence that she was deaf and dumb and was actively assisting her deaf and dumb husband in driving their automobile, saw defendants' cab but failed to warn her husband of its presence, he not seeing it, convicts her of contributory negligence as a matter of law and bars her recovery.
By proceeding to put on their case after the trial court overruled their motion for a directed verdict at the close of plaintiff's case defendants waived their right to have that motion preserved for appellate review.However, defendants' motion for a directed verdict filed at the close of all the evidence is before us.
It is the rule that the determination of whether a party is guilty of contributory negligence ordinarily is for the jury as within its function unless it can be said from all the evidence and the reasonable inferences therefrom viewed in the light most favorable to that party that the only reasonable conclusion is that he was negligent and that his negligence was a proximate cause of the injury.Evidence and inferences favorable to the other party are disregarded in making the determination.
Also, in deciding the question of contributory negligence as a matter of law, the general rule is that the party charged with contributory negligence is bound by his own testimony and may not be aided by other testimony conflicting with his testimony or with his basic theory of the case.See, Carpenter v. Kessner, Mo.App., 330 S.W.2d 270.
In accordance with these basic and applicable principles we proceed to set out plaintiff's testimony and such other testimony as might properly aid her or explain the occurrence.
Plaintiff testified that she and her husband had been visiting the Fred Murphy home.They left about 4:50 in the afternoon to drive home.She estimated the general speed of the Dodge car as it approached the intersection of 42nd and Agnes Streets as 'between 15 and 20 miles per hour.'
* * *
* * *
* * *
* * *
She also had looked to the north.
* * *
* * * 'He(taxi driver) went straight; he didn't slow down.'There was nothing to obstruct her vision when she was 25 feet south from the intersection.
Indicative of the difficulty of the plaintiff understanding the questions as presented through the interpreter is:
Police Officer Jack Maxwell testified for plaintiff that defendant Campbell at the scene of the accident Officer Maxwell also testified that while the intersection may be termed a blind one the range of vision is 'possibly 60 feet', range of vision meaning that if Mr. Campbell had been 60 feet back and Mr. Dillenschneider 60 feet back they could have seen each other.There was an embankment approximately 5 or 6 feet high and a house on the southwest corner.There was evidence that 71 feet of skid marks laid down at the scene were the taxi's skid marks.Officer Maxwell described the skid marks and stated that approximately 20 to 25 feet were heavy skid marks and the rest of the skid was a very light skid.
Defendant Campbell testified that it was a 'blind corner'; that when he was 25 feet (from) in the intersection and looked to the left he could see 25 feet.
He also stated he only saw the Dillenschneider car 6 feet from the point of intersection when he sounded his horn; that he was then going 20 miles per hour; that the intersection was approximately 26 feet wide and that it takes him approximately 40 feet to stop his taxicab when going 20 miles per hour; that the range of vision at that intersection is approximately 20 feet, i. e. equal distance from one street to the other.
In this state the driver of a motor vehicle has the duty to exercise the highest degree of care.The standard of care is that of a normal man, and if the particular driver has physical handicaps that affect his driving these are factors to be taken into consideration along with the other facts in determining whether or not he was negligent in a given situation.No driver is permitted to successfully claim exemption from the consequences of an accident due to his actions while driving on the ground that his physical deficiencies handicapped him.The usual rule with regard to those who have impaired hearing, is that if licensed to drive, they have a right to drive in spite of the impaired hearing, but must use their other faculties and so drive as, in effect, to off-set the disability and conform to the standard of exercising the highest degree of care required of all drivers of motor vehicles.
In line with these principles plaintiff's husband is not to be held guilty of negligence as a matter of law simply because he was a deaf mute.See, 61 C.J.S.Motor VehiclesSec. 484a, p. 82;Atkinson v. Cardinal Stage Lines Co., 148 Kan. 244, 80 P.2d 1073;28 A.L.R.2d 102(66).Nor is plaintiff to be held guilty of contributory negligence as a matter of law simply because she rode as a passenger in an automobile driven by a deaf-mute.
The general rule is that a guest-passenger in an automobile has a duty to exercise ordinary or reasonable care for his own safety, and is chargeable with contributory negligence which will bar his recovery if he fails to exercise such care and his failure contributes proximately to his injuries.As earlier indicated, ordinarily the question of the...
To continue reading
Request your trial
-
Bernal v. Bernhardt
...Fussell (1962), 106 Ga.App. 259, 126 S.E.2d 830, 833; Edwards v. Rudowicz (1963, Mo.App.), 368 S.W.2d 503, 507; Dillenschneider v. Campbell (1961, Mo.App.), 350 S.W.2d 260, 267; Wood v. Ezell (1961, Mo.App.), 342 S.W.2d 503, 507; Graham v. Rolandson (1967), 150 Mont. 320, 435 P.2d 263, 270-......
-
DiNizio v. Burzynski
...299, 92 N.W.2d 697, 701 (Sup.Ct.1958); Grapentin v. Harvey, 262 Minn. 222, 114 N.W.2d 578, 581 (Sup.Ct.1962); Dillenschneider v. Campbell, 350 S.W.2d 260, 266 (Mo.Ct.App.1961). The weight of authority likewise supports the admissibility of expert testimony in which reaction time plays a par......
-
Housman v. Fiddyment
... ... Jones, Mo.Sup., 218 S.W.2d 553; Cox v. Wrinkle, Mo.Sup., 267 S.W.2d 648; Welch v. McNeely, Mo.Sup., 269 S.W.2d 871; Ryan v. Campbell '66' Express, Inc., Mo.Sup., 304 S.W.2d 825; Chester v. Shockley, Mo.Sup., 304 S.W.2d 831; Duncan v. Pinkston, Mo.Sup., 340 S.W.2d 753(8); Williams ... Kansas City Public Service Company, Mo.Sup., 349 s.W.2d 860, 864(1). See also Jones v. Smith, Mo.Sup., 372 S.W.2d 71, 78(11, 12); Dillenschneider v. Campbell, Mo.App., 350 S.W.2d 260, 266(10--12); Edwards v. Rudowicz, Mo.App., 368 S.W.2d 503, 506--507(4--7) ... These cases ... ...
-
Rooney v. Lloyd Metal Products Co.
... ... this case concerning the estimated speed of plaintiff's automobile based upon skid marks and character of impact such as obtained in Dillenschneider v. Campbell, Mo.App., 350 S.W.2d 260, 266--268(10--12), (13), (14) ... We are convinced, and so hold, that under all the facts and ... ...