Edwards v. Bell

• Decision Date: 01 March 1937
• Docket Number: No. 5734.,5734.
• Citation: 103 S.W.2d 315
• Parties: EDWARDS v. BELL.
• Court: Missouri Court of Appeals

103 S.W.2d 315

EDWARDS v. BELL.

No. 5734.

Springfield Court of Appeals. Missouri.

March 1, 1937.

Rehearing Denied March 31, 1937.

Appeal from Circuit Court, Jasper County; Wilbur J. Owen, Judge.

"Not to be published in State Reports."

Action by Eva M. Edwards against Charles D. Bell, doing business as the Model Towel Supply Company. From a judgment for plaintiff, defendant appeals.

Affirmed on condition of remittitur.

F. H. Richart and Bruce Barnett, both of Joplin, and Arthur Popham, of Kansas City, for appellant.

Kelsey Norman and Alfred K. Lee, both of Joplin, for respondent.

ALLEN, Presiding Judge.

This action was commenced in the circuit court of Jasper county on May 11, 1935, by Eva M. Edwards, plaintiff, against Charles D. Bell, doing business as Model Towel & Supply Company, defendant.

On November 18th plaintiff by leave filed an amended petition, which petition was amended by interlineation, on December 7, 1935, and was in substance as follows:

Plaintiff, for cause of action, alleged that she was the widow of A. Lincoln Edwards, deceased, who came to his death at the time and in the manner hereinafter set out.

That the defendant is and was at all times hereinafter mentioned engaged in the towel supply business under the firm name and style of Model Towel Supply Company; that he kept and maintained his principal place of business in Jasper county, and in the management of his business owned, operated, and controlled certain motor vehicles, which he used about his business.

That Broadway is a public street running in a general east and west direction, within the corporate limits of Webb City, and that Liberty street is a public street, running in a general north and south direction, within the corporate limits, and that Broadway and Liberty were intersecting streets.

That on the 1st day of May, 1935, plaintiff's husband was walking in a northerly direction on Liberty street, on the east side thereof, and that while he was so crossing said intersection a certain automobile owned by and in charge of defendant was being driven in an easterly direction along Broadway, and that defendant carelessly and negligently drove and operated his automobile so that it collided with A. Lincoln Edwards, inflicting upon him mortal wounds, from which he lingered and died, and that the careless and negligent acts of defendant were as follows:

That defendant was driving his vehicle in the business portion of Webb City, at a greater rate of speed than 10 miles per hour, in violation of section 4 of Ordinance No. 2534 of the Ordinance of Webb City, which ordinance was in force and effect, on the date of the collision, and is in words and figures as follows:

"Sec. 4. No person or persons shall operate a motor vehicle upon any of the streets or highways of the city of Webb City, Missouri at such a rate of speed as to endanger the property or the life and limb of any person or persons, but shall at all times drive the same in a careful and prudent manner, and shall not in any event, while upon the streets and highways of said City, drive at a greater rate of speed than ten miles per hour in the business portions thereof, and at a rate of speed greater than twenty miles per hour in all other portions thereof; provided that when turning a corner of intersecting streets or alleys where the view is obstructed the rate of speed, shall not be greater than eight miles per hour."

That defendant carelessly and negligently, and in violation of section 7775 of the Statutes of Missouri (Mo.St.Ann. § 7775, p. 5197), failed to drive his automobile in a careful and prudent manner and to exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person, taking into consideration the time of day, the amount of vehicular traffic, condition of the highway and the location, with reference to intersecting highways, curves, residences and schools, but drove his automobile at the time and place aforesaid in a careless and negligent manner, when approaching an intersecting highway, and attempted to pass an automobile going in the same direction, on the highway, at and near the intersection, when vehicular traffic, approaching him from the opposite direction, was near at hand, and when plaintiff's husband was in the intersection and attempting to cross said street.

That defendant carelessly and negligently, and in violation of subsection (e) of section 7777 of the Revised Statutes of Missouri 1929 (Mo.St.Ann. § 7777, subsec. (e), p. 5213), attempted to pass another vehicle going in the same direction at and near the intersection mentioned, when the way ahead was not clear of approaching traffic, and when he could not pass to the left of the vehicle he was approaching and attempting to pass, and remain to the right of the center of the highway, while attempting to pass the vehicle he was overtaking; and carelessly and negligently attempted to pass the vehicle when it was in the act of crossing the intersecting highway.

That defendant was further careless and negligent, in that he saw, or by the exercise of the highest degree of care on his part could have seen, the plaintiff's husband in the intersection in a position of peril from defendant's approaching automobile, in time for defendant, by the exercise of the highest degree of care on his part, to have either slowed down or stopped his automobile, or swerved the same to one side, or to have warned the plaintiff's husband of the approach thereof, in time for plaintiff's husband, by the exercise of ordinary care on his part, to have reached a place of safety, or for the defendant to have, by slowing down or stopping, or swerving his automobile to one side, avoided the collision and resulting injury to plaintiff's husband, but that defendant carelessly and negligently failed to either slow down or stop his automobile, or swerve the same to one side or give any warning of the approach thereof.

That by reason of the acts of negligence of defendant, acting separately and cojointly, plaintiff's husband was killed.

Plaintiff stated that her husband, A. Lincoln Edwards, was of the age of 70 years at the time of his death, and had an expectancy of life of 8.48 years; that she was totally dependent upon him; that he devoted all his earnings to her support and maintenance; that by reason of his death, so caused as aforesaid, by defendant, she had been deprived of the support and maintenance of her husband to her damage in the sum of $10,000. Plaintiff prayed judgment against defendant in said sum.

Defendant, by its answer, admitted that at the time alleged in plaintiff's petition that plaintiff's husband, A. Lincoln Edwards, was walking in a northerly direction from the south side of Broadway toward the north side thereof, within a few feet east of the place where Broadway was intersected by Liberty street. Following this admission, each and every allegation of plaintiff's petition is denied, and plaintiff's husband, A. Lincoln Edwards, deceased, is charged with being guilty of negligence resulting in his injuries.

Plaintiff filed a reply to defendant's answer, which reply was as follows: "Comes now the plaintiff and for reply to defendant's amended answer herein, denies each and every allegation thereof, except those parts of said answer which admit the allegations in plaintiff's petition, expressly denying each and every allegation of new matter therein contained and set out."

Defendant filed a demurrer to plaintiff's reply, which was overruled by the court.

During the trial of the cause, after all the evidence had been heard, the court granted the plaintiff permission to strike from her petition the words "oblivious thereto," and on the same day granted defendant leave to amend his answer by adding thereto, by interlineation, the words "directly contributing thereto," which words appear in the answer of record in this cause; and on the same day the court made an order granting plaintiff leave to file her reply; and on the same day granted defendant leave to file a motion for judgment, on the pleadings, which motion was overruled.

Trial was had before a jury, and the verdict was as follows: "We, the jury, find the issues in favor of the plaintiff and against the defendant, and assess her damages at the sum of $5,000.00."

The court entered its judgment accordingly, and in addition thereto assessed the costs of the suit against the defendant.

Defendant filed motion for a new trial, which was by the court overruled, and the cause comes to this court on appeal by defendant.

The facts in the case appear to be as follows:

A little after 1 o'clock in the afternoon of May 1, 1935, A. Lincoln Edwards, deceased, left his home at 715 West Second street, in Webb City, to go to the public library. From there he was going to the post office. His route from the library to the post office was straight north on the east side of Liberty street, which is a north and south street, and a short distance north of the library is intersected with and crossed by Broadway, an east and west street. This intersection is in the corporate limits of Webb City, and in the business section thereof. At this intersection Liberty street from curb to curb is 27 feet wide and Broadway, from curb to curb, is 36 feet 1 inch wide. On each side of Liberty and Broad streets there is a concrete sidewalk 4 feet wide.

Broadway, in addition to being one of the main highways in Webb City, was also used as United States highway 71 and United States highway 66, constituting one of the most traveled highways in the southwest part of the state.

About 1:30 p. m. Edwards came leisurely along the sidewalk on the east side of Liberty street, and, when he reached Broadway, he started to cross it northward at the regular crossing for pedestrians. As he stepped off the curb, there was a car coming from the west on Broadway, which at that time was about the...