Finley v. Austin

• Decision Date: 07 November 1939
• Docket Number: No. 25045.,25045.
• Citation: 132 S.W.2d 1109
• Parties: FINLEY v. AUSTIN et al.
• Court: Missouri Court of Appeals

132 S.W.2d 1109

FINLEY v. AUSTIN et al.

No. 25045.

St. Louis Court of Appeals. Missouri.

November 7, 1939.

Rehearing Denied November 21, 1939.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be reported in State Reports."

Action by Hollis William Finley against J. D. Austin and another for personal injuries and damage to an automobile because of a collision with another automobile, in which defendants filed counterclaims. From a judgment for plaintiff on his cause of action and against defendants on their counterclaims, defendants appeal.

Affirmed.

Wm. Waye, Jr., of St. Charles, for appellants.

Thomas F. Manion and Paul Kaveney, both of St. Louis, and B. H. Dyer and David A. Dyer, both of St. Charles, for respondent.

SUTTON, Commissioner.

Plaintiff brings this action to recover for injuries to his person and damage to his automobile resulting from a collision of his automobile in which he was riding with the automobile of defendant James J. Connaughton.

The collision occurred at the intersection of what is known as the New Wabash Station Road with Highway 94, known as the Boschertown Road, leading north out of the city of St. Charles towards Boschertown, on December 2, 1936, about five thirty in the evening. The Boschertown Road runs north and south. The New Wabash Station Road runs northwest and southeast, intersecting Boschertown Road on the west. The New Wabash Station Road leads from its intersection with the Boschertown Road to the new Wabash Station. The Boschertown Road is paved with concrete. The pavement is twenty feet wide. The New Wabash Station Road is made of gravel on top of cinders. The gravel portion of the road is twenty feet wide. The road right-of-way is forty feet wide. There is a dirt shoulder on each side of the pavement of the Boschertown Road.

It was dark and snowing when the collision occurred. The snow melted as it fell, and the pavement was wet. Plaintiff's car was traveling north, and the Connaughton car was traveling south, on Boschertown Road. Plaintiff's car was being driven by his wife, and plaintiff was seated in the seat beside her. The Connaughton car was being driven by his chauffeur, J. D. Austin. Plaintiff's car made a left turn at the intersection of the New Station Road with Boschertown Road and as it was making the left turn the Connaughton car collided with plaintiff's car, and thereby plaintiff suffered the injuries for which he sues.

The collision occurred about two blocks north of the northern limits of the city of St. Charles.

Plaintiff testified that as his car was proceeding north on Boschertown Road about the city limits he noticed the Connaughton car quite a ways down the road; that he could see the car down the road, and as he had some mail, taking it up to the new station, in his lap, he started to assort the mail preparatory to getting it out when he got to the station, and did not look up until after he heard the wheels of his car come off the hard road onto the gravel, and at that instant practically the crash occurred; that the main impact to his car was by the front door of the other car, and was just right at the door at which he was sitting; that the length of his car from bumper to bumper was approximately eleven feet; that when he first saw the Connaughton car approaching it was about five blocks away; that a block is about three hundred feet; that the wheels of his car had gone on to the gravel just off the slab when the collision occurred; that his wife was driving not over twenty-five miles an hour when he first saw the Connaughton car, and she continued to drive at that speed as she went north on the road; that she slowed down before she made the turn to about twenty miles per hour and was going about twenty miles per hour as she made the turn, going into the station road; that after the collision his car was in the ditch on the south side of the station road; that the back wheels were down in the ditch and the front wheels on the shoulder towards the concrete slab facing in a southeast direction.

Eula May Finley, plaintiff's wife, testified that before making the left turn she saw the Connaughton car on the highway approaching from the direction of Boschertown; that she looked just before she made the left-hand turn; that she had seen the car some distance before she started to make the turn; that as she approached the intersection to make the turn, and before she made the turn, she looked to see how far the car was from her and saw that she had plenty of time to make the turn, and went ahead and made the turn; that as she made the turn she saw the headlights all the time on the car, and that she made the turn and left the pavement; that she could feel the wheels at the time her car left the pavement onto the gravel, and immediately the Connaughton car was there; that her car was just off the concrete slab when the Connaughton car struck her car; that it seemed like her car was struck just right at the door where plaintiff was sitting; that she was driving twenty to twenty-five miles an hour along the Boschertown Road as she approached the station road; that the car she was driving was a new Plymouth car; that she just made a normal turn like she did at any other corner; that when she started to make the turn the Connaughton car was two blocks away; that she was driving on the right of the center of the pavement of the Boschertown Road as she approached the intersection and when she started to make the turn; that she had slowed down to fifteen miles per hour before she started to make the turn; that the four wheels of her car were off the road at the time the collision occurred; that her car was not completely straightened out at the time it was struck.

C. L. Guthrie, who came upon the scene of the accident immediately after it occurred, testified, for plaintiff, that on arriving there he saw the Finley car in the ditch just south of the station drive, and that the other car was on the slab facing north, somewhat south of the Finley car; that the Finley car was in the ditch on the west side of Boschertown Road and south of the station road; that the Finley car was about eight or ten feet south of the station drive, and the Connaughton car twenty or twenty-five feet south of the station road.

V. C. Holmes, who came upon the scene of the accident immediately after it occurred, testified, for plaintiff, that he saw the cars that had been involved in the accident; that the rear end of the Finley car was in the ditch with the front end up on the edge of the shoulder along the Boschertown Road, and was on the south side of the station road; that the Connaughton car was on the west side of the Boschertown Road headed north about thirty feet from the intersection of the Boschertown Road and the station road, at least that far if no farther.

Defendant Austin testified that the accident occurred on the west side of the Boschertown Road; that he was driving on the right-hand side of the concrete road, and the accident occurred right at the station road which leads up to the new Wabash station, and the accident occurred on the west side of the concrete road; that he was coming into St. Charles, and right at this intersection he noticed the Finley car coming up the road a little bit before this, and just as he got into the intersection this car made a sudden left-hand turn right in front of him; that he put on his brakes as much as he could but hit the side of the Finley car; that the Finley car was forty or forty-five feet from him when it started to make the turn; that he was driving thirty-five or forty miles an hour at the time; that he was driving a Chevrolet car which had hydraulic brakes in good condition; that his car went possibly ten or twelve feet after the collision and the Finley car turned into the ditch, the back end down and the front end up on the shoulder; that his car turned around in the road and was facing Boschertown; that he was familiar with the road before the accident and knew the location of the station road; that his car at the time it struck the Finley car was on the right-hand side of the slab swinging to the left.

Plaintiff, in his petition, charges, among other things, that the defendants at the time and place mentioned negligently drove their automobile at a rate of speed, which, under all the circumstances and conditions then and there present, was excessive, dangerous, and not reasonably safe, and thereby directly caused their automobile to strike the automobile in which plaintiff was riding.

Each of the defendants filed a separate answer, denying generally the allegations of the petition, charging contributory negligence, and also setting up a counterclaim.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff on plaintiff's cause of action for $900, and against both defendants on their respective counterclaims. Defendants appeal.

At the close of all the evidence defendants requested an instruction in the nature of a demurrer to the evidence, which the court refused. The court at the request of the plaintiff gave an instruction to the jury directing a verdict for plaintiff on a finding that the driver of plaintiff's car was exercising the highest degree of care in driving said car, and that the driver of the Connaughton car negligently drove the car at a rate of speed which under all the circumstances and conditions then and there present was a dangerous and excessive rate of speed and not reasonably safe, and that the collision was solely caused by reason of such dangerous and excessive rate of speed.

Defendants assign error here for the refusal of their instruction in the nature of a demurrer to the evidence, contending that there was no evidence to show that the driver of the Connaughton car was driving the car at a dangerous or excessive rate of speed.

The evidence for the plaintiff does not directly show the speed at which the...