Egan v. Palmer
| Decision Date | 06 July 1926 |
| Docket Number | No. 15720.,15720. |
| Citation | 293 S.W. 460 |
| Parties | EGAN v. PALMER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Kenneth McD. De Weese, Special Judge.
Action by Anna Egan against Gus Palmer. Judgment for plaintiff, and, from a judgment granting a new trial, she appeals. Affirmed.
Harry G. Kyle and Walter A. Raymond, both of Kansas City, for appellant.
Otto P. Higgins and Paul C. Sprinkle, both of Kansas City, for respondent.
This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $5,000. The court granted a new trial to defendant, and plaintiff has appealed.
The facts show that plaintiff was injured on August 25, 1923, about 2 p. m., while riding in an automobile being driven by her daughter, Mrs. Adamson, westwardly on Eighteenth street in Kansas City, Mo., when truck being driven by a servant of the defendant southwardly on Charlotte street, intersecting Eighteenth street at right angles, struck on the intersection the automobile in which plaintiff was riding. Mrs. Adamson was a Ford sedan automobile owned by tour of the her husband and had invited plaintiff and another daughter of the latter to accompany her to a theater. Plaintiff was seated with her other daughter in the rear seat and on the right side thereof. For several blocks the automobile had been driven along the of the street car track on Eighteenth street about 1½ feet south of and parallel to a truck being driven in the same direction by one Tivis. The traffic on Eighteenth street was very heavy and was proceeding westwardly on the north side of the street in double file. There were several automobiles ahead of the Tivis truck and two or three ahead of the Adamson automobile and between the latter and a street car proceeding in the same direction. The street car stopped just east of Charlotte street to let off and take on passengers. This caused all automobile traffic behind the street car to stop. When the street car started the automobile truck started with it, and the intersection then was filled with a double of traffic going west. Mrs. Adamson and Tivis started up going across the intersection side by side, both vehicles being in low speed and proceeding at the rate of about 5 miles per hour. Only 2 or 3 feet intervened between the front ends of the Tivis truck and the Adamson automobile and the automobiles in front of each.
Charlotte street between Seventeenth and Eighteenth streets in the direction from which defendant's truck came had a slight incline toward the south. Defendant's truck was first seen 200 to 300 feet north of the intersection coming south. At this time it was being driven at a rate of speed from 18 to 20 miles per hour; the street car was proceeding across Charlotte street, and the Tivis truck was moving but had not yet emerged into that street. Tivis testified that the first time he saw defendant's truck it was between Seventeenth and Eighteenth streets on Charlotte, but he was unable to say exactly how far away it was; at this time it was going from 18 to 25 miles per hour, and the witness was "going out in Charlotte street." The witness continued to proceed forward. The next time the witness saw defendant's truck, "It was right up on me." The driver of defendant's truck had not slackened its speed or sounded any warning of its approach. When the witness saw it the second time he stopped in order to permit it to pass in front of him, and it did so, passing about two feet in front of the front end of his truck.
The evidence further shows that Tivis' truck was a large "stake truck" with a cab about 12 or 15 feet high in front. Each of the sides of the body of the truck was covered with a large sign. Mrs. Adamson testified that she could not see north on account of the obstruction caused by the cab of Tivis' truck, but when Tivis stopped she looked to see "what was the matter," and saw defendant's truck by looking over the radiadriving Tivis truck. At this time she was about 3 feet east of the center of Charlotte street. When she saw defendant's truck she had "just started to nose out ahead" of the Tivis truck; she was "just about even" with the Tivis truck, and "had not got out in front (Tivis) truck yet." When she saw defendant's truck coming she turned her car toward the south in an effort to avoid a collision, but was unable to do so, defendant's truck striking the right front fender of her car. The collision occurred 2 or 3 feet ahead of and in front of the Tivis truck. The evidence further shows that at the Intersection in question Eighteenth street is about 30 feet and Charlotte about 40 feet in width. There was no other south-bound traffic on Charlotte street north of Eighteenth street at the time in question.
The negligence charged in the petition was that "* * * defendant's said agent and servant negligently failed to stop or slow down or sound a warning by horn or otherstream wise before driving said truck into said intersection; that just as plaintiff's car reached the center of said intersection, defendant's agent and servant drove defendant's said truck into violent collision with the automobile in which plaintiff was riding," and that the driver of defendant's truck in question.
The negligently failed to control and that "* * * defendant's said agent and servant negligently failed to stop or slow down or sound a warning by horn or otherwise before driving said truct into said intersection; that just as plaintiff's car reaced the center of said interesection, defendant's said truck into violent collison with the automobile in which plaintiff was riding," and that the driver of defendant's truck "* * * negligenctly fialed to control and operate said truck in such a manner that it would not be driven into violent collision with the automobile in which plaintiff was riding, injuring plaintiff; that he negligently drove said truck into violent collision with the automobile in which plaintiff was riding, injuring plaintiff; that he negligently failed to wait until plaintiff had crossed said intersection before driving said truck into said intersection and into violent collision with the automobile in which plaintiff was riding, injuring plaintiff; that he negligently failed to stop said truck, swerve same to one side, or slow said truck down before driving into said intersection and into violent collision with the automobile in which plaintiff was riding, injuring plaintiff; that he negligently failed to sound a warning by horn or other wise before driving said truck into said intersect ion and into violent collision with the am ton obile in which plaintiff was riding, injuring plaintiff; that he negligently drove said trunk down said street at a high and negligent rate of speed, to wit, 25 miles per hour, and into violent collision with the automobile in which plaintiff was riding, injuring plaintiff ; that he negligently drove said truck into said intersection and into violent collision with the automobile in which plaintiff watt riding, after he saw, or by the exercise of ordinary care could have seen, plaintiff in a position of peril, oblivious to her danger and unable to extricate herself in time, by the exercise of ordinary care to have sounded a warning, stopped said automobile or swerved the same to one side in time, by the exercise of ordinary care to have avoided the accident; that he negligently drove said truck into said intersection at a high and negligent rate of speed, to wit, 25 miles per hour and into violent collision with the automobile in which plaintiff was riding in diract violation of sections 9 and 26 of Ordinance No. 28759 of Kansas City, Jackson county, Mo., which were in full force and effect on that date and which," among other things provided that when passing a street intersection the rate of speed of a motor vet isle Should not exceed 10 miles per hour when any person or vehicle is upon said intersection "with whom or with which there 'is or may be danger of collision." The petition also alleged that the driver of defendant's truck negligently drove said truck into said intersection and into violent collision with the automobile in which plaintiff was riding without sounding any warning by horn or otherwise in violation of an ordinance set out in the petition, which merely required, among other things, that automobiles shall be equipped with a horn or signal device of a certain kind.
The court in granting the new trial assig led as a reason therefore that he should have sustained the demurrer to the evidence for the reason "* * * that the daughter who was driving the automobile in which plaintiff was riding at the time of the collision, was passing a truck going in the same direction while said truck was crossing an intersecting highway, in violation of subdivision a (e), § 21, p. 93, the Laws Ex. Sess. Mo. 19'4" 1."
Plaintiff insists that the court erred in sustaining defendant's motion for a new trial; that plaintiffs daughter was not violating the statute at the time of the collision, and, if Iihe were, her negligence would not be imputable to plaintiff; and that it would be no More than negligence concurring with that of del endant's servant. Defendant insists that the daughter was violating the statute, and that, while her negligence is not imputable to plaintiff, defendant's servant was not negligent, and that if he were the negligence of " plaintiffs daughter "superseded, intervened, and cut off any negligence on the part of the driver of respondent's truck, and therefore no concurrent negligence existed at the time of the collision." In other words, defendant contends that the negligence of the daughter was the sole, proximate cause of the collision.
The statute in controversy provides as follows:
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