Garvey v. Ladd

• Decision Date: 01 December 1924
• Docket Number: No. 15000.,15000.
• Parties: GARVEY v. LADD.
• Court: Missouri Court of Appeals

266 S.W. 727

GARVEY v. LADD.

No. 15000.

Kansas City Court of Appeals. Missouri.

December 1, 1924.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by John P. Garvey against Walter P. Ladd. Judgment for plaintiff, and defendant appeals. Affirmed.

John S. Boyer, of St. Joseph, and Mosman, Rogers & Buzard, of Kansas City, for appellant.

Culver, Phillip & Voorhees, of St. Joseph, for respondent.

TRIMBLE, P. J.

As plaintiff and defendant were driving their respective automobiles on the streets of St. Joseph, Mo., a collision between the two occurred and plaintiff was injured. He brought this suit, claiming $15.000 damages, and, upon recovering judgment for $3,492, the defendant appealed.

The petition, in substance, charged that plaintiff was driving his car south on the west side of Ninth street, and was approaching the intersection of Olive street, which ran east and west; that at said time defendant negligently drove his car west along Olive street at a high and dangerous rate of speed, to wit, 25 or 30 miles an hour, and went past and to the west of the center of Ninth street on the aforesaid intersection. and then drove against plaintiff's automobile with great force and violence, striking same at a point on Ninth street about 20 or 25 feet north of the north line of said intersection, throwing plaintiff against the steering wheel of his car, severely shocking his entire nervous system, and rupturing him, necessitating an operation and the expenditure of hospital bills of $105.82, and doctor bills to the amount of $350, and, furthermore rendering plaintiff incapable of attending to business, and damaging his automobile.

The answer was a general denial, coupled with a plea of contributory negligence in that "the plaintiff carelessly and negligently failed to exercise the highest degree of care in failing to stop his said automobile before the collision, * * * although the plaintiff saw, or by the exercise of due care on his part, might or could have seen, that at said time and place there was danger of collision, and plaintiff was further negligent in failing to keep a reasonably careful and vigilant lookout, and negligently and carelessly failed to turn his automobile aside or to stop the same and thereby prevent the collision complained of."

Ninth street is 39.6 feet wide from curb to curb, and Olive street is 35.7 feet wide. On the southeast and northeast corners of the intersection are buildings which extend out to the sidewalk on both streets. At the northwest corner of the intersection is a building, the north side of which is about 40 feet north of the north property line on Olive street. The intersection of Ninth and Olive is several blocks from the Union Station. The collision occurred between 1 and 1:30 o'clock on the afternoon of November 1, 1922. Defendant, with two friends, were going to the Union Station to meet certain persons coming on a train due to arrive at the Union Station at 1:30.

Plaintiff testified as follows: That he was coming south on Ninth street, on the west side thereof and about two feet from the west curb, traveling at the rate of 10 miles per hour, and when he was somewhere in the neighborhood of 30 or 40 feet from the north property line of Olive street (the north line of said intersection), he, for the first time, saw defendant coming west on the north side of Olive street just as he (defendant) entered the intersection, or reached the east property line of Ninth street projected north across Olive street. At this moment defendant was going straight west at the rate of 25 to 35 miles per hour, but a Dodge car was, at that time, going north on the east side of Ninth street about from 2 to 4 feet from the east curb. Defendant, traveling west at the above speed, in order to avoid striking the Dodge car, swerved around it to the north and, passing in front of the Dodge car, went on to the west side of Ninth street, but headed straight toward the building on the northwest corner of the intersection. Defendant was endeavoring to stop, but could not, and, in order to avoid going into the building, he turned north up the west side of Ninth street, and collided, head on, with plaintiff's car at a point about 30 or 35 feet north of the north line of the intersection, and about 4 feet east of the west curb of Ninth street. Plaintiff was coming south on Ninth about 2 feet east of the west curbthereof, but as he saw defendant's car turn and come up the west side of Ninth, he endeavored to turn out east, so as to get out of defendant's pathway, but had time ony to get about 2 feet further east than he was. Plaintiff says defendant came west across the intersection and swung around into his path very rapidly, and so swiftly that he could hardly realize it, and he tried to swerve his car to the east in order to avoid defendant, but got only 2 feet from where he had been; and at the time of the collision, he (plaintiff) had very nearly stopped, while defendant had succeeded in reducing the speed of his car somewhat but was still going 12 or 15 miles per hour. The front of defendant's car struck the front of plaintiff's car, damaged the radiator, knocked off the left front wheel and headlight, and threw plaintiff heavily forward, causing his abdomen to strike violently against the steering wheel, rupturing and otherwise injuring him.

Plaintiff further testified that defendant sat in his car for a moment after the collision, and then got out, came over to where plaintiff sat in his car, handed plaintiff his (defendant's) identification card and said he (defendant) was responsible for the accident; that he could not avoid it; that it was his fault; that he told plaintiff to call up Fox Bros. and have his car hauled in, and have it repaired and charge it to him (defendant). Plaintiff testified that he took a copy of the card. The court, however, sustained defendant's objection to the introduction of the card or its copy.

Plaintiff's counsel asked him to state what defendant said, when he handed plaintiff his card, with reference to who was to blame or liable. The court ruled that the witness could state anything defendant said in the nature of an admission of his own individual liability, but not to state what was on the card nor as to any other liabilities. The witness answered that defendant said, "Here is my card. They will take care of you. I am insured." Upon defendant's objection, the court struck out the last remark, instructed the jury to pay no attention to anything except an admission of defendant's liability if there was such an admission, and overruled defendant's motion to discharge the jury. Plaintiff's counsel then asked:

"Q. Now, so the jury will understand correctly what is in and what is out, do not state anything Mr. Ladd said with reference to anybody else's liability, leave that out, and state what, if anything, Mr. Ladd said when he handed you the card about who was to blame and what you should do?"

Defendant objected and moved to discharge the jury. The court overruled the motion to discharge the jury, but, sustaining the objection as to the first part of the question, ruled that that part of the question which went solely to what the defendant stated as to who was to blame, would be permitted, and that the witness might answer that part of it. The witness then answered that defendant said he was to blame, he could not help it; and told plaintiff to call up Fox Bros. and have them to haul plaintiff's car in and repair it and present the bill to him (defendant). Plaintiff then testified that he called up Fox Bros. (garage men), but they would not agree to charge the bill to Mr. Ladd unless the latter would sign a written order to that effect; that witness then telephoned to Ladd about it and the latter said he would make arrangements with somebody else, but never did and did not pay for the repairs. Plaintiff further testified that on the intersection, and for some distance on every side thereof, the streets were paved with asphalt and the day was dry; that Ninth street was practically level, but there was "quite a grade" or a fall to the west on Olive.

Fanning, a witness for plaintiff, testified that he was standing in his shop door which faced south on Olive about midway between Eighth and Ninth streets and heard the noise of the collision, but did not see it, and immediately went to the corner to see what had happened, and saw, at a point on Ninth street about 30 or 35 feet north of the northwest corner of the intersection, two cars against each other, the defendant's headed north or slightly northwest, and plaintiff's headed south or slightly to the southwest, and both were very near to the curb on the west side of Ninth; that defendant walked over to plaintiff, took out of his pocket an identification card and handed it to plaintiff, saying:

"I am to blame, I just took a chance. I could not get away no other way; I could not turn only north; I had to turn north; just took a chance; if you had not been there I would have been all right, but just as it happened you were there."

Fanning also said that defendant claimed a car on Ninth went in front of him and that he had to turn to miss it.

Defendant testified that he and two friends were going from the Moila Golf Club to the Union Station to meet two golf professionals coming in on the train; that as he approached the intersection he was going west on the north side of Olive, that the corner at the intersection was a "blind corner" and he was going about 14 to 16 miles per hour; that as the front of his car was entering the intersection he caught a glimpse of a car coming from the south; that he thought it was "probably 50 or 60 feet" south of the south curb line of Olive, but "I didn't have time to estimate distances very well"; that when he saw the other car coming he had no opportunity to estimate the speed at which it was going, but "it...