Faust v. East Prairie Milling Co.

• Decision Date: 23 September 1929
• Docket Number: No. 4600.,4600.
• Citation: 20 S.W.2d 918
• Parties: FAUST v. EAST PRAIRIE MILLING CO.
• Court: Missouri Court of Appeals

20 S.W.2d 918

FAUST v. EAST PRAIRIE MILLING CO.

No. 4600.

Springfield Court of Appeals. Missouri.

September 23, 1929.

Rehearing Denied October 30, 1929.

Appeal from Circuit Court, New Madrid County; H. C. Riley, Judge.

Action by Flora Faust against the East Prairie Milling Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. L. McClintock, of Cape Girardeau, for appellant.

J. M. Haw, of Charleston, for respondent.

BAILEY, J.

This is an action to recover damages for personal injuries and property damage sustained by plaintiff in an automobile collision between plaintiff's car and a truck of defendant's. The petition is unduly long, but may be said to charge negligence in three particulars only. It is first charged that defendant was negligent in hiring an incompetent chauffeur who had not complied with the statute in obtaining a chauffeur's license. Some evidence was introduced in support of this charge, but plaintiff failed to submit such issue in her instructions. There was no evidence, however, tending to prove the chauffeur incompetent, and the charge that such chauffeur had no license was wholly irrelevant, since it had no causal connection with the accident. This issue requires no further consideration. The other two charges of negligence were that defendant's said chauffeur, while delivering goods for defendant, parked defendant's truck and trailer on state highway No. 60, in the village of Wyatt, with "the right side near the left hand side of said highway from the direction in which said vehicles were facing, off the concrete slab and immediately behind another motor vehicle which completely hid defendant's said motor vehicle from the view of plaintiff coming from the opposite direction." It is next charged that said chauffeur wantonly drove the truck "from directly behind another motor vehicle onto the concrete slab of said highway from the left hand side thereof, facing the direction in which said motor vehicle was turned, immediately in front of plaintiff's motor vehicle, without any warning to plaintiff by honking the horn or otherwise, and kept defendant's said motor vehicle, while in motion and while so meeting plaintiff coming from the opposite direction as aforesaid, to the left of the center of said highway, then and there and thereby operating and driving defendant's motor vehicle at, against and upon plaintiff." The petition further alleged the extent of the injuries and prayed judgment for $6,700 damages to plaintiff's person, $750 damage to the car, and for $1,250 punitive damages.

The answer consisted of a general denial and a plea of contributory negligence on the part of plaintiff in driving at a dangerous rate of speed and in failing to exercise the highest degree of care.

Trial was to a jury and resulted in a verdict and judgment against defendant for $1,500 as actual damages to her person, $650 damages to her car, and $120 as exemplary or punitive damages. Defendant has appealed.

No contention is made on this appeal that plaintiff failed to make a case for the jury. A brief statement of the facts will therefore suffice. The accident occurred on federal highway No. 60, which is built of concrete slab and runs between Charleston and Bird's Point. On the 25th day of November, 1927, plaintiff was driving a Chevrolet coach on this highway where it passes through the village of Wyatt. She was accompanied in the car, which belonged to her, by her niece, brother, and nephew, ages 13, 19, and 7, respectively. As she approached the scene of the accident she was driving on her right-hand side of the highway and at a speed of 15 or 20 miles per hour. At that time defendant's truck was parked off the slab and behind another car on the same side of the highway that plaintiff was driving. It had approached from the opposite direction from that in which plaintiff was driving and had been driven off the slab on the left hand side. Just as plaintiff reached a point close to where the truck was thus parked, defendant's chauffeur drove it out and onto the slab and in front of plaintiff's car. She first saw the truck just at the time the cars hit. Plaintiff tried to prevent hitting defendant's truck but, according to plaintiff, it was too close to do so. Defendant's version of the accident was entirely different, but no useful purpose would be served in setting it forth. Plaintiff's car was totally destroyed. She was injured and the extent of her injuries will be hereinafter discussed.

It is first urged that the trial court erred in giving plaintiff's instruction, unnumbered, but referred to by counsel as No. 1. This instruction is of considerable length, and for the sake of brevity will not be set out in all its details. It informed the jury that plaintiff's petition charged that on the 25th day of November she received certain injuries, "all caused by the following acts of negligence of defendant's servant and agent." It then sets forth the charges made in the petition. For the purposes of this opinion these charges as contained in the instruction may be briefly stated to be (1) negligence in parking on the left side of the highway; (2) negligence in parking behind another car; (3) negligence in failing to drive on the right-hand side of the highway; (4) negligence in failing to turn to the right of the center of the highway when meeting plaintiff's car; (5) negligence in driving from directly behind another motor vehicle onto the slab from the left-hand side immediately in front of plaintiff's said car without warning. The instruction, after detailing the acts of negligence charged in the petition as above set forth, concluded as follows: "And you are further instructed that plaintiff need not prove all of said acts of negligence, but that if you find and believe from the evidence that plaintiff was injured and her automobile was demolished or damaged and that said injuries to herself and damages to her motor vehicle were directly caused by any one of said acts of negligence, and that at the time plaintiff was exercising due care and caution for her own safety, then your verdict should be for the plaintiff, Flora Faust." Defendant contends this instruction erroneous because it fails to require the jury to find what acts of negligence, if any, were...