Favorite v. Bethel

• Decision Date: 12 December 1932
• Parties: E. G. FAVORITE, ADM., ETC., RESPONDENT, v. FRANK BETHEL, APPELLANT
• Court: Kansas Court of Appeals

55 S.W.2d 702

227 Mo.App. 645

E. G. FAVORITE, ADM., ETC., RESPONDENT, v. FRANK BETHEL, APPELLANT

Court of Appeals of Missouri, Kansas City

December 12, 1932

Appeal from Circuit Court of Johnson County.--Hon. Leslie A. Bruce Judge.

AFFIRMED.

Judgment affirmed.

Nick M Bradley and Roy A. Jones for respondent.

J. R Rothwell and W. E. Suddath for appellant.

OPINION

ARNOLD, J.

This is an action in damages for personal injury resulting in death.

Plaintiff, as the duly qualified and acting administrator of the estate of James Pollock, whose death is alleged to have been caused by the negligence of defendant, brought this suit. Defendant was the owner of certain automobile freight trucks for the operation of which he employed drivers. The suit originated and was tried in the circuit court of Johnson County, Missouri. There was a verdict and judgment for plaintiff in the sum of $ 1250. Motions for a new trial and in arrest were ineffectual, and defendant has appealed.

The amended petition alleges James Pollock died, intestate, and that plaintiff, on February 23, 1931, was duly appointed and qualified as administrator of his estate; that said James Pollock was an adult at the time of his death and that he died leaving neither wife nor any natural born or adopted children. It is alleged that on November 12, 1930, at about four P. M., deceased was a passenger in an automobile owned by his son and being operated at the time by his said son, on U.S. Highway No. 50, in a portion of said highway lying within the east corporate limits of the City of Warrensburg in Johnson County, Missouri, when, at said time and place the defendant, his servant, agent or employee, in the scope of his employment, carelessly and negligently operated an automobile truck, a motor vehicle, east on said highway, so as to cause said truck carelessly, negligently and violently and forcibly to strike, run into, upon and against the automobile in which deceased was a passenger; that said servant of defendant, on approaching said point of collision, carelessly and negligently failed and neglected to keep a reasonably careful and vigilant lookout ahead; carelessly and negligently operated said truck at a high and dangerous rate of speed, to-wit, in excess of forty miles per hour; failed and neglected to give sufficient warning of the approach of the said truck; failed to keep said truck to the right of the center line of said highway, and drove said truck to the left of the center line of said highway; failed to exercise the highest degree of care in the operation of said motor vehicle; that the same was not equipped with good and sufficient brakes, in good working order, as required by law, and failed and neglected to use the kind of brakes with which said truck was equipped at the time of the collision; that, as said truck approached the point of collision, deceased was in imminent danger, and that said defendant, his servant, agent or employee "saw, or in the exercise of due care could have seen the deceased in a position of peril in time thereafter to use due care and means at hand and with safety to said automobile truck and to the driver and occupants thereof, to have stopped said truck, or to have slackened the speed thereof, or to have given warning of its approach, all in time by the exercise of due care to have avoided striking the car in which deceased was a passenger," but carelessly and negligently failed to use the means at hand to avoid said collision, and that said failure of defendant was the direct cause of the collision.

The petition also pleads Section 489, Chapter 14, Article 1, of the revised ordinances of the City of Warrensburg, limiting the speed of motor vehicles upon any street, avenue, highway or alley of said city to a rate not to exceed fifteen miles per hour in the business district, and twenty-five miles per hour in the residence district; that defendant, his servant, agent or employee, negligently drove said automobile truck, within the residence district of said city at a rate of speed in excess of twenty-five miles per hour; that by reason of said collision, decedent James Pollock, was thrown from said automobile, his body bruised and torn, his bones broken so that he suffered for two days thereafter and on the 14th day of November, 1930, died as a direct result of said collision and the carelessness and negligence of defendant; that prior to said accident and death, decedent was a strong, able-bodied man, the head of a family and sole support of four unmarried daughters and two sons, all adults; that said heirs were deprived of his support and assistance; that they have expended large sums of money for hospital and doctors' bills, funeral and burial expenses. Judgment is asked in the sum of $ 10,000.

The answer is a general denial, and, as affirmative defense, pleads contributory negligence, as follows:

"That he (decedent) failed to be observant of his surroundings and what he was doing, and negligently failed to observe the physical facts and physical conditions thereat and thereabout, and negligently failed to use his ordinary sense of sight and observation, and failed to use the usual and ordinary care that a reasonably prudent person would use under like or similar circumstances for his own protection and preservation and negligently, heedlessly and needlessly exposed himself to danger and that but by aforesaid acts of contributory negligence and omissions upon the part of the said James Pollock, he would not and could not have been injured."

The reply was a general denial. Upon the pleadings thus made, the cause was tried to the court and jury, resulting in a verdict and judgment as above indicated.

The facts of record disclose that U.S. Highway No. 50 runs generally east and west across the State of Missouri, and is intersected in the northeast part of the City of Warrensburg by State Highway No. 13, at right angles. At this intersection is a filling station known as Tip Top station. The highway (No. 50) from this station eastward is slightly down-grade for about one-eighth of a mile, thence slightly up-grade for a somewhat lesser distance, and from there down-grade for almost a quarter of a mile, thence up-grade again. A little in excess of three-eighths of a mile east of said filling station and on the north side of Highway No. 50 is a dwelling house known as the Courtney Keith home. There is a driveway from the paved portion of the highway up into the Keith place. This driveway is some eight to ten feet wide with a wing on each side where the driveway connects with the paved portion of the highway. These wings make the entrance to the driveway about twenty-seven feet in width where it touches the highway pavement, and within eight or ten feet back, it is narrowed to a width of about ten feet. This driveway is approximately half way down the second incline in the highway going east. Highway No. 50, at this point, is composed of a cement slab eighteen feet in width, with a dark center line running east and west dividing the surface into two segments each nine feet in width. There are also unpaved shoulders five or six feet in width flanking the eighteen foot slab.

On the day in question Orville Pollock and his father (decedent) had driven east on Highway No. 50, and had parked their car on the south shoulder of the paved portion of the highway, headed east, and somewhat east of the east line of the Keith driveway. They had gone into an adjacent field on the south side of the highway to look for some repair piece in a junk pile for the car belonging to Orville. On their return to the car, Orville went to the north side of the car which stood parked as stated, his father remaining on the south side thereof. Orville then got into the car and started the engine, asking his father if any car was coming; the father replied that the way was clear. Orville testified that after his father got into the car, he backed the car westward five or six feet along the dirt shoulder, and before actually driving on the pavement, he looked back to the west and saw no car coming; that he kept on slowly backing, with the intention of backing up into the Keith driveway; that he saw no car approaching after he got into his car; that he gave no signal indicating his intention to back the car, or that he was going to cross the highway, either forward or backward. Plaintiff's testimony further shows the Dodge car was struck by the truck on the north side of the center line of the highway and while its rear wheels were in the...