Feeherty v. Sullivan

• Decision Date: 06 June 1939
• Docket Number: No. 24996.,24996.
• Citation: 129 S.W.2d 926
• Parties: FEEHERTY v. SULLIVAN et al.
• Court: Missouri Court of Appeals

129 S.W.2d 926

FEEHERTY v. SULLIVAN et al.

No. 24996.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Rehearing Denied June 20, 1939.

As Modified June 28, 1939.

Appeal from St. Louis Circuit Court; Thomas J. Rowe, Jr., Judge.

"Not to be reported in State Reports."

Action by John S. Feeherty against William D. Sullivan and another to recover damages for personal injuries sustained when the taxicab in which the plaintiff was riding collided with an automobile driven by the named defendant. Judgment for plaintiff, and the named defendant appeals.

Judgment reversed and cause remanded with directions.

Moser, Marsalek & Dearing, of St. Louis, for appellant.

Clarence A. Peterson and Everett Hullverson, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, John S. Feeherty, when a taxicab driven by defendant Eli Harris, and in which plaintiff was riding as a passenger, came into collision with an automobile being driven by defendant William D. Sullivan. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against both defendants, in the sum of $7,500. Judgment was rendered accordingly, from which defendant Sullivan alone has perfected his appeal to this court.

The accident happened about 1:30 o'clock on the morning of June 27, 1936, at the intersection of Penrose Street and Warne Avenue, in the City of St. Louis.

Penrose Street runs east and west, while Warne Avenue runs north and south, intersecting the former at right angles, save for the fact that south of Penrose Street there is a substantial jog in Warne Avenue towards the east.

The taxicab in which plaintiff was riding was westbound on Penrose Street, while appellant's automobile, a Chevrolet sedan, was southbound on Warne Avenue. The collision occurred at a point some few feet out from the southwest corner of the intersection, the force and manner of the impact being such as to cause the taxicab to be overturned, whereby plaintiff received the injuries for which he has sought to be compensated in this proceeding.

Though he makes no point about the sufficiency of the evidence to have taken the case to the jury, appellant, Sullivan, does complain about the manner of its submission, and as a matter of chief insistence assigns error to the giving of plaintiff's instruction No. 1, which was as follows:

"The Court instructs the jury that if you find and believe from the evidence that on the occasion in question, defendant, William Sullivan, was operating the Chevrolet automobile mentioned in evidence, and if you further find that the taxicab in which plaintiff was riding, then and there collided with the said automobile operated by defendant, Sullivan, if you so find, and that at and prior to the time of the said collision, the said taxicab became and was in a position of imminent peril of being struck and injured by the said automobile, and that defendant saw, or by the exercise of the highest degree of care could have seen said taxicab in such position of imminent peril, if you so find, in time for defendant, Sullivan, by the exercise of the highest degree of care, with the means and appliances then at hand, and with reasonable safety to said automobile and occupants thereof, to have stopped the said automobile, slackened the speed thereof, swerved the same, or given warning of its approach, and that defendant Sullivan could thereby have prevented said automobile coming in contact with the said taxicab, but that defendant, Sullivan, failed to do so, and in so failing, if you so find, was negligent, and that said Chevrolet automobile did come in contact with said taxicab, injuring the plaintiff, as a direct result of the negligence of the defendant, Sullivan, if you so find, then the Court instructs you that even if you further find from the evidence that the driver of the taxicab was himself negligent in getting the said taxicab into such position of imminent peril, if you so find, nevertheless your verdict must be in favor of the plaintiff, and against the defendant, Sullivan."

Appellant's complaint about the instruction is that in hypothesizing a verdict for plaintiff, it erroneously submitted the question of appellant's negligence in having failed to give a warning of his approach, when, under the evidence, his admitted failure to have sounded his horn could not have been the proximate cause of the collision between the two vehicles.

It is of course true, just as appellant points out, that the ultimate question for our consideration is whether there was substantial evidence to show that the giving of a warning by appellant would have been of avail to defendant Harris, the driver of the taxicab in which plaintiff was riding as a passenger. This for the reason that plaintiff himself had nothing to do with the operation of the taxicab, and, under his own admission, was paying no attention to the manner in which the same was being driven. Indeed he testified that he had no knowledge whatsoever of the details of the accident, recalling only that from the Friday night when he entered the taxicab and gave the driver his destination, his mind was a blank until the following Tuesday when he regained consciousness and found himself in a hospital.

Now while failure to warn may constitute actionable negligence under proper circumstances, it is only so where the plaintiff or party complaining of the failure was oblivious to the impending peril, since if he was aware of the danger and had all the sufficient and timely notice of the same that a warning signal could have afforded him, then the defendant's failure to have given a warning could not be deemed to have been the proximate cause of the ensuing injury. Scott v. Terminal Railroad Ass'n of St. Louis, Mo.App., 86 S.W.2d 116; Bach v. Ludwig, Mo.App., 109 S.W.2d 724; Priebe v. Crandall, Mo. App., 187 S.W. 605.

In this case the question of whether there was substantial evidence in the case to establish a causal relation between appellant's failure to have sounded his horn and the subsequent collision between the two vehicles is to be determined from the testimony of defendant Harris, who was put upon the stand as plaintiff's first and principal witness.

The difficulty in resolving this question is due to the presence of contradictions and inconsistencies in Harris' testimony with respect to the point from which he first saw appellant's approaching automobile and the relative positions of the two vehicles at that moment. On direct examination by plaintiff's counsel, he testified definitely to one version of the facts; on cross-examination by appellant's counsel, and while undertaking to point out and mark certain locations and distances on a plat which appellant's counsel was mistakenly holding "turned around" during a part of the examination, he testified to a different version; and then, on final cross-examination by his own counsel, after stating that during his cross-examination by appellant's counsel he had been confused on account of the fact that counsel had held the plat "sideways", he expressly reverted to his original version of the facts as the true state of facts to which he intended to testify. Testimony in every instance depends for its probative force upon the fact that the witness who gives it purports to vouch for its truth, so that in this instance, where the witness himself, before leaving the stand, explained and repudiated the inconsistencies appearing in the course of his cross-examination by appellant's counsel, the matters repudiated no longer had probative force as testimony of the witness, but in the final submission of the case were to be considered only as they may have affected the question of his credibility.

Viewing the situation in this light, we find Harris testifying that when his taxicab was right in line with the northeast curb, he first saw appellant's automobile approaching from a point 75 to 85 feet to the north on Warne Avenue; that he had meanwhile reduced the speed of his taxicab to 20 miles an hour, while appellant's automobile appeared to be traveling at a speed of 35 to 40 miles an hour; that having observed appellant's automobile approaching the intersection, he put on speed in an attempt to get across the street ahead of it; that he continued to watch the approach of appellant's automobile as he drove out into the intersection; and that when he reached a point midway of the intersection where it became apparent to him that a collision was impending, he swung his taxicab sharply to the left, though not in time to avoid having it struck and turned over by appellant's automobile.

Under this state of facts it is obvious that Harris had all the sufficient and timely notice of the appoach of appellant's automobile that a warning signal could have given him, so that appellant's admitted failure to have sounded a warning of his approach could not have been the proximate cause of the collision. Nor was plaintiff aided in this respect by any of the other testimony in the case, all of which, whether put on by him or by appellant, tended to show that the collision was solely attributable to the negligence of defendant Harris, who, under such version of the facts, was driving westwardly on Penrose Street at a speed of 40 to 50 miles an hour, and ran into appellant's automobile after it had slowly entered the intersection at a time when the taxicab was still...