Edwards v. Woods

• Decision Date: 17 August 1938
• Docket Number: 35459
• Citation: 119 S.W.2d 359,342 Mo. 1097
• Parties: Alvin D. Edwards v. Clarence N. Woods and Ira Woods, Copartners, Doing Business under the name and style of Woods & Son Transfer Company, Appellants
• Court: Missouri Supreme Court

119 S.W.2d 359

342 Mo. 1097

Alvin D. Edwards v. Clarence N. Woods and Ira Woods, Copartners, Doing Business under the name and style of Woods & Son Transfer Company, Appellants

No. 35459

Supreme Court of Missouri

August 17, 1938

Appeal from Carroll Circuit Court; Hon. Ralph F. Lozier Judge.

Affirmed.

W A. Franken and Chapman & Chapman for appellants.

(1) The court erred in refusing Instruction 2 in the nature of a demurrer to the evidence offered by the defendants at the close of the evidence, because the evidence shows that the plaintiff was not the real party in interest. Sec. 3309, R S. 1929. (2) The court erred in refusing Instruction 2 in the nature of a demurrer to the evidence offered by the defendants at the close of the evidence, because the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law. The physical facts show that plaintiff was driving his automobile with his elbow protruding from the window. This act constituted gross negligence. Smith v. Ozark Water Mills, 215 Mo.App. 129; Carroll v. Transit Co., 107 Mo. 653; Gabriel v. Railroad Co., 135 Mo.App. 222; Fussellman v. Wabash Ry. Co., 139 Mo.App. 198; Nivert v. Railroad Co., 232 Mo. 643; Wheeler v. Wall, 157 Mo.App. 38; Wininger v. Bennett, 104 S.W.2d 413. (3) Where a person assumes a position of imminent danger where there is at hand and accessible to him a place of safety, and by reason of having taken the dangerous position, he is injured, he can have no recovery against another who is also negligent because such person's negligence in taking the dangerous position is one of the direct and proximate causes of the injury and contributes thereto. Wininger v. Bennett, 104 S.W.2d 413; Smith v. Ozark Water Mills, 215 Mo.App. 129; Smotherman v. Railroad Co., 29 Mo.App. 265; Carroll v. Transit Co., 107 Mo. 653; Gabriel v. Railroad Co., 135 Mo.App. 222; Williams v. Storage Co., 214 S.W. 385; Woodson v. St. Ry. Co., 224 Mo. 685; Collett v. Kuhlman, 243 Mo. 591; Nivert v. Wabash Ry. Co., 232 Mo. 626; Fussellman v. Wabash Ry., 139 Mo.App. 198; Wheeler v. Wall, 157 Mo.App. 38. (4) Plaintiff's testimony that he did not have his elbow protruding from the window is contrary to the physical facts and the surrounding circumstances and, therefore, has no probative force. Payne v. C. & A. Ry. Co., 136 Mo. 562; Kibble v. Q.O. & K.C. Ry. Co., 285 Mo. 603; Zalotuchin v. Met. St. Ry. Co., 127 Mo.App. 577; Davidson v. St. L.-S. F. Ry. Co., 164 Mo.App. 701; Nowlen v. Kansas City Pub. Serv. Co., 58 S.W.2d 324. (5) Courts are not bound to give credence to the evidence of a witness which is so opposed to natural law and physical facts as to be manifestly false. Phillips v. S.W. Mo. Ry. Co., 170 Mo.App. 416; Yonkers v. St. L. I. M. & S. Ry. Co., 182 Mo.App. 558; Clark v. Atchison & Eastern Bridge Co., (Mo.) 62 S.W.2d 1079; Maxwell v. Kansas City, 52 S.W.2d 487. (6) The court erred in refusing to abate this action as the evidence shows that there was a defect parties plaintiff. The evidence shows that the Maryland Casualty Company, insurer of plaintiff's employer, the Ill. Mo. Supply Company, paid plaintiff compensation and by virtue of Section 3309, Revised Statutes 1929, the Maryland Casualty Company became subrogated to any right the plaintiff had against the defendants and, therefore, was the proper party plaintiff and real party in interest. (7) By Section 3304, Revised Statutes 1929, the word "employer" in Chapter 28 (Workmen's Compensation Act) is construed to include his insurer. (8) The court erred in refusing Instruction A offered by the defendants. It submitted the defense of contributory negligence pleaded and proved. Stephens v. Eldorado Springs, 185 Mo.App. 464; Derrington v. Poplar Bluff, 186 S.W. 561; Sullivan v. Chauvenet, 186 S.W. 1090. (9) It is erroneous to refuse an instruction submitting a defense supported by evidence, notwithstanding plaintiff's evidence to the contrary. Smith v. Southern, 236 S.W. 413; Jordan v. Daniels, 27 S.W.2d 1052; Jennings v. Cooper, 230 S.W. 328. (10) The court erred in permitting the plaintiff to demonstrate to the jury his injured arm by twisting and moving it around over the objections and exceptions of the defendants. Willis v. Browning, 161 Mo.App. 463; Meyer v. Johnson, 30 S.W.2d 642; Riepe v. Green, 65 S.W.2d 668. (11) It is essential, in order to impose liability upon owner of motor vehicle for operating same on public highways without displaying lights, that the absence of lights was the proximate cause of the injuries complained of. 42 C.J., sec. 597, p. 895; Berry on Automobiles (4 Ed.), p. 175, sec. 186; Roger v. Greenspoon, 192 S.W. 149, 272 Mo. 288; Shumate v. Norton, 215 Mo.App. 87; Conrad v. Hanna, 253 S.W. 808; Dewolf v. Stix, Baer & Fuller, 240 S.W. 1094; Pugley v. Tyler, 197 S.W. 1177; Fern v. Clark, 104 P. 632; Beebe v. Hannett, 194 N.W. 542; Thomas v. Stevenson, 178 N.W. 1021; Hardie v. Barrett, 101 A. 75; Turner v. Bennett, 142 N.W. 999.

S.J. & G. C. Jones and Hunter & Chamier for respondent.

(1) Section 3309, Revised Statutes 1929, does not take away the employee's common-law right of action against the negligent third party; and said section is no bar to the right of the injured employee, as a real party in interest, to maintain the action in his own name against the negligent third party. McKenzie v. Mo. Stables, Inc., 34 S.W.2d 139; Langston v. Selden-Breck Const. Co., 37 S.W.2d 477; De Soto ex rel. v. Dover, 38 S.W.2d 267; General Box Co. v. Mo. Utilities Co., 55 S.W.2d 446; Sylcox v. Natl. Lead Co., 38 S.W.2d 501; Anzer v. Humes-Deal Co., 58 S.W.2d 963; Reynolds v. Grain Belt Mills Co., 78 S.W.2d 124; Markley v. Kansas City So. Ry. Co., 90 S.W. 415; 1 Schneider's Workmen's Comp. Law, 361. (b) Defendants cannot complain that the action was brought by the employee. As to defendants, the employer and insurer are concluded. The judgment herein, for the employee alone, is a bar to defendants' further liability for the collision in question. McKenzie v. Mo. Stables, Inc., 34 S.W.2d 139; Wilhelm v. Hersh, 50 S.W.2d 739; Bushman v. Barlow, 321 Mo. 1058, 15 S.W.2d 330; Swift & Co. v. Wab. Ry. Co., 149 Mo.App. 530; 30 Cyc. 78. (2) The testimony of a witness may be rejected because opposed to the physical facts, only when the deduction and conclusion from such facts are so clear and irrefutable that no room is left for the entertainment by reasonable minds, of any other deduction or conclusion. It requires an extraordinary case to authorize the court to regard sworn testimony as manifestly impossible and untrue, and this is certainly not such a case. Clark v. A. & E. Bridge Co., 324 Mo. 561; Schupback v. Meshevsky, 300 S.W. 467; Kibble v. Railroad Co., 285 Mo. 618, 227 S.W. 42; 2 Blashfield, Cyc. Auto Law, 1752; Kiefer v. St. Joseph, 243 S.W. 107; Rockwell v. Standard Stamping Co., 241 S.W. 979; Kelly v. Ry. Co., 225 S.W. 134; Young v. Dunlap, 195 Mo.App. 122. (a) The credibility of the witnesses and the truth of their testimony was for the determination, and within the exclusive province, of the jury. Holzemer v. St. Ry. Co., 261 Mo. 411; Steele v. Ry. Co., 302 Mo. 217, 257 S.W. 756; Schupback v. Meshevsky, 300 S.W. 467; Clark v. A. & E. Bridge Co., 324 Mo. 561. (b) A demurrer to the evidence is sustainable only when the facts in evidence, and the legitimate inferences to be drawn therefrom, are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Clark v. A. & E. Bridge Co., 324 Mo. 561; Cech v. Chemical Co., 20 S.W.2d 511. (c) Even if plaintiff had his elbow protruding, he was not guilty of negligence per se, and the question of contributory negligence was for the jury. Barton v. Railroad Co., 52 Mo. 254; Gardner v. Met. St. Ry. Co., 233 Mo. 419; Gage v. St. L. Transit Co., 211 Mo. 152; Smith v. Transit Co., 120 Mo.App. 328; 10 Blashfield, Cyc. Auto Law (Per Ed.), sec. 6618. (d) Defendants waived their demurrer by going on with their defense and introducing evidence and asking instructions in support thereof. Davidson v. Hines, 246 S.W. 303; St. Louis v. Wright Const. Co., 210 Mo. 491; Frye v. Railroad Co., 200 Mo. 377; Riley v. O'Kelly, 250 Mo. 660; Myers v. Orpheum Co., 228 Mo.App. 854.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondent, Edwards, obtained a verdict against appellants in the sum of $ 30,000, as damages for personal injuries sustained in a collision of a car driven by respondent and a truck operated by defendants' agent. The trial court overruled the motion for a new trial on condition that plaintiff enter a remittitur of $ 20,000. Plaintiff complied with the condition and judgment was entered in the sum of $ 10,000. Defendants appealed.

Plaintiff on April 4, 1933, at about seven-thirty P. M., was driving a Chevrolet coach north on Highway No. 5, between Purdin and Browning, Missouri. Defendants' truck, with an ordinary cattle or stock rack, was being driven south. The highway was graveled for a space of about twenty feet and had shoulders the usual width of five or six feet. It had been raining and was dark and foggy. Plaintiff testified that he saw a car coming at some distance with only one headlight burning. No clearance lights were burning and he could not see that it was a truck. Plaintiff testified that he was driving to the right of the center of the highway; that he was unable to determine, until the truck was only about one hundred feet from him, which of the two headlights was out; that he then discovered that the left light was not burning; that he was then near the right edge of the gravel. Plaintiff's car and the truck, using a common expression, "side-swiped" each other. After the collision the door handle of plaintiff's car was found embedded in the front end of the frame of the truck. The...