Green v. Boehm

• Decision Date: 08 January 1934
• Docket Number: No. 17961.,17961.
• Citation: 66 S.W.2d 570
• Parties: GREEN v. BOEHM et al.
• Court: Missouri Court of Appeals

66 S.W.2d 570

GREEN v. BOEHM et al.

No. 17961.

Kansas City Court of Appeals. Missouri.

January 8, 1934.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by May Green against John Boehm, doing business as Boehm Dye Works Company, and another, in which Alfred Green, administrator of the estate of May Green, deceased, was substituted as plaintiff. Judgment for plaintiff, and defendants appeal.

Affirmed on condition of remittitur; otherwise reversed and remanded.

Horace Guffin and Edmund B. Smith, both of Kansas City, for appellants.

Roy W. Rucker, James R. Sullivan, and Arthur R. Wolfe, all of Kansas City, for respondent.

SHAIN, Presiding Judge.

This action, seeking to recover damages for injuries alleged as being inflicted in an automobile collision, was originally brought by May Green as plaintiff against John Boehm, doing business as Boehm Dye Works Company, and John Boehm, Jr., defendants.

Before trial May Green died, as is alleged, from causes other than injuries received in the collision, and Alfred Green, administrator of her estate, was duly substituted as plaintiff herein.

The collision occurred in the intersection of Fifteenth street and Chestnut street of Kansas City, Mo. Fifteenth street, 76 feet from curb to curb, runs east and west. Chestnut street, 36 feet from curb to curb, runs north and south. The evidence is all to the effect that May Green was riding in a Chevrolet roadster that was being driven by a Mr. Speed Keep and that a collision with a Ford truck occurred near the center of Chestnut street and approximately four feet from the north curb of Fifteenth street. The Chevrolet in which Mrs. Green was a passenger was being driven eastward on Chestnut street and in entering the intersection of Fifteenth street had made a left turn to the north to proceed north on Chestnut street. The evidence is to the effect that the Chevrolet had passed the center of Chestnut street and had begun to make the turn, when it stopped to let two or three cars pass that were going west on the north side of Fifteenth street; that after the cars passed the driver started the car to complete its turn north on Chestnut street and the collision occurred.

The Ford truck in question belonged to defendant John Boehm, Sr., who was the proprietor of a dye works. The truck was being driven by defendant John Boehm, Jr., and is admitted to being driven in the conduct of the business of the dye works. The Ford truck was being driven west on Fifteenth street.

The evidence is conflicting as to the operation and the speed of the two cars.

Plaintiff's evidence is to the effect that as the Chevrolet came into Chestnut street signal was given and left-hand turn to north was made; that after the Chevrolet stopped to let several cars pass it had just started up and was proceeding at from four to six miles an hour when struck. Plaintiff's evidence is to the effect that the Ford truck when seen, approximately fifty feet east of the east curb line of Chestnut street, was being driven at from forty-five to fifty miles per hour, and that it came into the intersection, made a short swerve to the north to where the collision occurred, and that the truck's speed was forty miles an hour when impact came.

Defendants' evidence is to the effect that the Chevrolet began making left turn forty or fifty feet before entering the intersection; that it was going at a rate of twenty-five to thirty miles an hour when the impact came. One witness for defendant puts the speed of the Ford truck at twenty-five miles an hour some twenty-five feet before the collision, and testified that the two cars were about of equal speed, of twenty miles an hour, when the collision occurred. The driver of the Ford truck testified that he was proceeding at a speed of twenty-five miles an hour, saw the Chevrolet in the path of his course when in about twenty-five feet of same, applied his brakes, and had reduced his speed one-half when the impact came.

The evidence discloses that Mrs. Green was thrown from the car and onto the pavement, and witnesses testified that she received serious injury to her head and body. She was taken to the General Hospital of Kansas City and there examined and treated for two days and afterwards treated by Dr. Owens of Kansas City during a period of between four and five months.

Trial was by jury resulting in a verdict of $10,000 for plaintiff. Judgment was entered in accordance. Motion for a new trial was filed by defendants, wherein was charged that verdict was excessive. Upon indication of trial court that it considered the verdict excessive to the amount of $3,000, the plaintiff made remittitur in that amount, and the first judgment was set aside and new judgment for $7,000 was made and entered by the court.

From this judgment, defendants have duly prosecuted this appeal. Two assignments of error are presented, as follows:

"I. The court erred in failing to reprimand plaintiff's counsel for improper and prejudicial remarks made by plaintiff's counsel in his closing argument to the jury, and in overruling defendants' motion to discharge the jury because of said remarks, and in failing to rule upon defendants' motion to discharge the jury because of said remarks.

"II. The verdict is excessive, and so grossly excessive as to evidence bias and prejudice on the part of the jury against the defendants."

These assignments are duly taken up and presented by defendants in points and authorities in their brief.

As before stated, the evidence as to operation and speed of the cars is very conflicting. However, counsel for defendants, recognizing the rule of...