Gallagher v. S. Z. Schutte Lumber Co.

• Decision Date: 15 June 1925
• Docket Number: No. 15374.,15374.
• Citation: 273 S.W. 213
• Parties: GALLAGHER v. S. Z. SCHUTTE LUMBER CO.
• Court: Missouri Court of Appeals

273 S.W. 213

GALLAGHER v. S. Z. SCHUTTE LUMBER CO.

No. 15374.

Kansas City Court of Appeals. Missouri.

June 15, 1925.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

"Not to be officially published."

Action by Thomas G. Gallagher against the S. Z. Schutte Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hackney & Welch and Ryland, Boys, Stinson & Hag, all of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $6,000, and defendant has appealed.

The facts show that on the afternoon of July 7, 1922, plaintiff was standing south of, and about to enter, his bread truck, situated from 6 inches to a foot south of the north curb of Fifteenth street, an east and west street in Kansas City, Mo. The truck was standing 15 to 20 feet east of Virginia avenue, a north and south street intersecting Fifteenth street. While plaintiff was standing in this position, with his back to the south, defendant's Ford coupé, operated by its salesman, one Corrigan, was proceeding westward on the north side of Fifteenth street. The coupé was going in a straight line directly toward the west. When it reached a point southeast of plaintiff and nearly due south of him, it suddenly turned almost at right angles to the north and struck plaintiff. There was a Ford touring car being driven by one Swofford, which was attempting to pass defendant's coupé about the time of the accident. There was a double street car track on Fifteenth street. The street was 77 feet wide from curb to curb, and the distance from the north curb to the north track was 32 feet 8 inches. Defendant's coupé was running in a line variously stated to be 2, 3, 4, 6, 10, or 18 feet north of the car tracks. There was evidence that the coupé was 6 to 8 feet south of plaintiff at the time it turned. Plaintiff's bread truck was 5 feet wide. Plaintiff's evidence tended to show that the touring car proceeded in a straight line until it passed the coupé, and did not turn to the north until after it reached Virginia avenue. There was evidence that the touring car was running at the rate of 15 to 20 miles an hour, and that the coupé at the rate of 15 miles an hour.

Defendant's evidence tended to show that the coupé was proceeding westwardly at a moderate rate of speed; that the touring car was attempting to pass the coupé on the latter's left-hand side, and when almost past the coupé it suddenly turned towards the north immediately in front of the coupé, in an effort to again get into the line of traffic, causing the hub cap of the right rear wheel of the touring car to strike the hub cap of the left front wheel of the coupé. This threw the steering wheel out of the hands of the driver of the coupé, and caused his car to suddenly veer to the right, striking plaintiff.

The petition charged that the coupé was proceeding westward in a line 5 or 6 feet south of that part of the street in which plaintiff was standing, and, when it reached a point almost even with plaintiff, the employee of defendant driving the same (1) "negligently caused and permitted said Ford coupé to be turned suddenly to the right and to the north toward the plaintiff"; (2) that the driver of the coupé negligently failed to give plaintiff any warning; (3) that he negligently caused and permitted the Ford coupé to violently strike and collide with plaintiff; (4) that the driver of the coupé negligently failed to stop or turn aside his car after plaintiff's peril was observable; and (5) that he operated his coupé at an excessive rate of speed. All of these charges of negligence were abandoned" except the first one, which we have quoted from the petition.

It is insisted that the court erred in giving plaintiff's instruction No. 1, for the reason that the first charge of negligence in the petition was general, and, being followed by specific acts of negligence, plaintiff was confined to the specific acts charged, and that the instruction was improper in submitting negligence in the words of the first charge. As before stated, the petition stated the position of plaintiff; that the coupé was proceeding 5 or 6 feet south of that part of the street in which plaintiff was standing, and, when it reached a point almost even with plaintiff, the driver negligently caused and permitted it to be turned suddenly to the right into plaintiff. From the facts stated in the petition, this charge by necessary inference amounted to a statement that the coupé was run into plaintiff without any warning and this without considering any of the charges subsequently made in the petition. The running of the coupé into plaintiff under the circumstances as charged in the first specification of negligence was negligence within itself, and it was unnecessary for the petition to allege the evidence showing the exact manner in which, or the particular reason why, the coupé was caused to swerve. That the first charge in the petition is not a general charge, and that the instruction was not erroneous, we think is beyond question. Rogles v. United Rys. Co. (Mo. Sup.) 232 S. W. 93; State ex rel. v. Trimble (Mo. Sup.) 260 S. W. 746, 748; Monan v, Arkansas Grocery Co. (Mo. App.) 264 S. W. 487; Dollie C. Mining Co. v. Rd., 194 Mo. App. 35, 39, 182 S. W. 1055; Grimm v. Globe Printing Co. (Mo. Sup.) 232 S. W. 676, 678. In the cases of Price v. Street Ry. Co., 220 Mo. 435, 119 S. W. 932, 132 Am. St. Rep. 588, and Bergfeld v. K. C. Rys. Co., 285 Mo. 654, 227 S. W. 106, and like cases cited by the defendant, the charge of negligence was entirely different from that contained in the petition in the case at bar.

We think, however, that the court erred in giving plaintiff's instruction No. 2, which told the jury that, if plaintiff's injury was the direct result of the negligence submitted in plaintiff's instruction No. 1—

" * * * then, although you may further find that James Swofford, the driver of the Ford touring car mentioned in the evidence, was also negligent in the manner in which he operated said touring car, and although you may further find that, as a direct result of the concurrent negligence (if any) of defendant's employee and said Swofford a collision, occurred between said touring car and defendant's coupé, nevertheless the court instructs you that the concurring negligence (if any) of said Swofford would not excuse the negligence (if any) of defendant's employee, and would constitute no defense whatever to this action; the plaintiff not being responsible for or chargeable with the negligence (if any) of said Swofford." (Italics ours.)

The negligence submitted in plaintiff's instruction No. 1 was that, when the coupé "had reached a point almost even with plaintiff, defendant's said employee, driving the same negligently (if you so find), permitted said Ford coupé to be turned suddenly to the right and to the north toward plaintiff." Of course, it is quite apparent why plaintiff's instruction No. 2 was given. It was to meet defendant's contention that the left front hub of the coupé was struck by the right hub of the touring car just prior to the time the touring car swerved suddenly in front of the coupé. This was a very plausible explanation of the collision.

It will be noted that in instruction No. 2 no particular act of Swofford is submitted as concurring with the negligence of defendant's employee. The instruction does not directly state "what the concurring negligence (if any) of defendant's employee" was, but, if we may assume that it was the negligence submitted in plaintiff's instruction No. 1, then it was his negligence in permitting the coupé to be turned suddenly to the right. Instruction No. 2 does not submit concurring negligence as producing the collision with plaintiff but in producing the collision between the two cars. We are unable to imagine any negligence submitted in the instruction relating to the swerving of the coupé that could cause a collision between the two cars, as the collision could not have been caused by the swerving of the coupé to the right, for that would have tended to prevent the collision. The instruction confuses cause and effect. If the collision was caused by any negligence of defendant's driver, it must have been some other negligence, and the swerving of the coupé to the right was the only negligence pleaded.

However, plaintiff argues that on account of the respective speeds at which the coupé and touring cars were being operated, and the respective position of each of the drivers of the two cars in reference to the front and rear of his respective car, there is an inference in the evidence that there was a lapse of considerable time from the time the driver of the coupé could have seen the touring car passing him to the time of the collision; that "there was abundant opportunity, therefore, for defendant's driver to have plainly seen the passing touring car, and by turning slightly to the right (in the abundant unobstructed space available) to have avoided the alleged contact between the hub caps"; that defendant's driver admitted that he did not see the touring car but an instant before it struck his car; that, in view of the testimony that the touring car did not turn to the right, but proceeded straight on after passing the coupé, the inference is that, in order for the coupé to have come in contact with the car, the driver of the former must have "operated his car and have turned to the left, in other words, he must have run into the touring car while it was in plain sight." But these acts of negligence, if any, are inconsistent with the idea of turning the coupé to the right. As before stated, it was the turning of that car to the right by defendant's servant that was submitted as concurring with some unmentioned act of negligence on the part of the driver of the touring car as...