Freed v. Mason

• Decision Date: 08 January 1940
• Docket Number: No. 19496.,19496.
• Citation: 137 S.W.2d 673
• Parties: FREED v. MASON.
• Court: Missouri Court of Appeals

137 S.W.2d 673

FREED v. MASON.

No. 19496.

Kansas City Court of Appeals. Missouri.

January 8, 1940.

Rehearing Denied March 4, 1940.

Appeal from Circuit Court, Jackson County; William F. Woodruff, Judge.

"Not to be reported in State Reports."

Action by James E. Freed against Wilbur E. Mason to recover damages for personal injuries allegedly sustained in an automobile collision. Verdict and judgment were entered for defendant. From Judgment granting plaintiff's motion for new trial, the defendant appeals.

Reversed and cause remanded, with directions.

Mosman, Rogers & Bell, of Kansas City, for appellant.

John F. Cell, of Kansas City, for respondent.

KEMP, Judge.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff in a collision between two automobiles, for which plaintiff sought to recover $5,000. There was a verdict for defendant and judgment accordingly. Plaintiff filed motion for new trial, which the court sustained on the specific ground of error in giving, at defendant's instance, "Instruction F", which was intended as a "sole cause" instruction. From this adverse ruling the defendant has duly prosecuted this appeal. We shall continue to refer to the appellant as defendant and respondent as plaintiff.

Defendant contends that the court erroneously overruled his requested demurrer to the evidence at the close of all the testimony, in which event the error in giving said instruction, if error there was, is immaterial. The sufficiency of the evidence to make a case for the jury being thus challenged, we shall set forth in substantial detail the facts disclosed by the evidence.

Linwood Boulevard is an east-west thoroughfare, which is intersected by Main Street, which runs north and south, both public streets in Kansas City, Missouri. The accident here involved occurred October 3, 1936, on the north side of Linwood Boulevard at a point about 120 feet west of the intersection of Linwood Boulevard and Main Street. Beginning at a short distance west of Main Street, there is a safety zone on the north side of and adjacent to the north street car track in Linwood Boulevard. This zone is approximately 6 feet wide and 50 feet long. The distance from the north curb of Linwood Boulevard to the row of buttons marking the north boundary of the safety zone is 16 feet. The distance from the north curb of Linwood Boulevard to the north rail of the street car tracks is 22 feet, Linwood Boulevard being 60 feet wide from curb to curb.

At the time of the accident in question, the plaintiff, then twenty-two years of age, was employed in his father's cleaning business located at 3107 Main Street in Kansas City, Missouri, and at this particular time was engaged as a driver of a Ford coach delivery car. The collision occurred at about 3 o'clock in the afternoon of a clear, dry day. When asked on direct examination as to how the accident occurred, plaintiff answered as follows:

"Well, as I had said before, I was using my father's 1935 Ford coach, and I had to make a stop at Linwood and Main on the south side of the street for Mrs. Saxby's Dress Shop. I had made that stop many times before, and I had noticed a safety zone, and noticed the two telephone poles on the north curbing. I left the shop and drove south on Main Street and turned to my right into Linwood Boulevard and drove one hundred twenty feet west of the west side of Main Street. I came to a dead stop and was right next to the curb, so close that I could not open my right hand door on account of the two telephone poles on the north curbing. I reached down and grabbed the emergency brake with my right hand and also glanced in the rear vision mirror at the same time, and grabbed hold of the left inside handle on the left door with my left hand, and I unlatched the door, reached down and pulled up the emergency brake and was in that position at the time Mr. Mason's car struck my car, sideswiped it.

"I saw Mr. Mason's car approaching Linwood off of Main Street as I glanced in the rear vision mirror, which I thought was Mr. Mason's car after the accident. I was sitting in this position (indicating) so when Mr. Mason struck my car then it threw the door completely open and turned me around in my seat; also set me outside in the street, almost completely out of the car. It knocked the outside—the left outside handle off of my door and knocked it about fifty feet west of my car yet. I sat there in the car and was dazed. I was excited, and finally I came to enough to get out of the car and look over and see if anyone was hurt in Mr. Mason's car."

At the time plaintiff first saw defendant's car he had unlatched the door with his left hand and had opened it 6 or 8 inches (at another place in his testimony he said he had opened it not more than 8 to 10 inches); that he kept his hand on the door from the time he thus partially opened it until the collision occurred; that it was never opened any wider than the position it was in at the time plaintiff first saw defendant's car 120 feet to the rear of him—that is to say, prior to the collision it was never opened wider than 6 to 10 inches; that when plaintiff saw defendant's car 120 feet away, he tried to pull the door shut but was unable to do so before the collision; that if the door was moving at all after he first saw defendant's car it was moving in toward the plaintiff. No explanation was given as to why he could not have shut the door completely. There was no evidence of any defect in the normal operation of the door.

Plaintiff testified that when defendant's car turned off of Main Street, "He was going pretty fast * * * I would not say how fast he was going". The left door of plaintiff's car was approximately 36 inches wide and opened from the rear to front. Likewise, the right front door of defendant's Chevrolet opened from rear to front. Plaintiff testified that the front part of the right front door of defendant's car, and about the hinges of the front door, came in contact with the partially opened door of plaintiff's car and jerked it completely open and around to the front fender and tore it off its upper hinges, leaving it attached only to the lower hinge. Plaintiff further testified that the running board of his Ford car was about 6 inches wide. At another place he estimated the width at 5 to 8 inches, but stated that the running board of defendant's Chevrolet automobile was somewhat wider than this. The point at which plaintiff stopped his car was to the west of the west end of the safety zone, and there were no obstacles in the street, either moving or stationary which would have prevented defendant from driving in any position in the north half of the street.

Defendant testified that he was driving north on Main Street and made a left hand turn to the west into Linwood Boulevard; that plaintiff's car, coming from the north, had turned west on Linwood ahead of him and that he followed behind plaintiff's car at a distance of 12 or 15 feet and that both cars were moving at a speed of approximately 20 miles per hour. He testified that when plaintiff's car stopped, he turned to the left, passing plaintiff's car about a foot and a half to the left thereof, and that as he was passing plaintiff's car, the left door of plaintiff's car opened and struck the right front door of defendant's car at a point about 8 inches in front of the rear side of the right front door, tearing a narrow groove in the side of his car and causing a deep, jagged tear in his right rear fender. Defendant testified that, going at 20 miles an hour, he could stop in two car lengths—within 25 to 30 feet.

Plaintiff's testimony is the only testimony offered upon behalf of plaintiff as to the circumstances attending the collision. Two eye-witnesses testified on behalf of defendant, substantially corroborating his testimony.

In passing upon the question of whether or not plaintiff made a submissible case, we shall, of course, disregard all of defendant's testimony except insofar as it may tend to aid in making out a submissible case, and consider only the testimony most favorable to plaintiff.

Plaintiff's petition alleges three grounds of negligence:

(1) "That considering the location, traffic and surrounding circumstances, defendant drove his motor vehicle at said time and place at a high, reckless and dangerous rate of speed, to-wit, in excess of thirty miles per hour."

(2) Negligence under the humanitarian theory—charging that "defendant saw the motor vehicle of plaintiff parked as aforesaid and plaintiff therein and plaintiff starting to emerge therefrom * * * and where plaintiff was in a position of danger and peril, and where plaintiff would be injured if defendant collided with said motor vehicle wherein the plaintiff was so sitting or emerging, in time, by the exercise of the highest degree of care * * *" to have slackened speed, turned to one side or stopped, or to have given warning signal, "all in time * * * to have avoided running into and striking the motor vehicle wherein plaintiff was sitting or emerging, as aforesaid, and thereby have avoided injuring plaintiff, but negligently failed to do so".

(3) The violation of sub-sections (a) and (d) of Section 48 of Traffic Ordinance No. 2031, providing:

(a) that a vehicle proceeding in the same direction as another vehicle shall pass to the left thereof at a safe distance, etc.

(d) that the driver of an overtaking motor vehicle shall give a warning before passing or attempting to pass a vehicle moving in the same direction.

Also alleged the violation of Section 81 of said Ordinance, requiring motor vehicles (except motorcycles) to be provided with at least two adequate brakes.

While the case was submitted only on the humanitarian theory of negligence, in passing upon a demurrer to the evidence we must determine whether a case was made for the jury upon any theory of negligence charged in the petition. The charge of negligence...