Grouch v. Heffner

• Decision Date: 23 November 1914
• Docket Number: No. 11317.,11317.
• Parties: GROUCH v. HEFFNER.
• Court: Missouri Court of Appeals

171 S.W. 23

184 Mo. A. 365

GROUCH v. HEFFNER.

No. 11317.

Kansas City Court of Appeals. Missouri.

November 23, 1914.

1. APPEAL AND ERROR (§ 637) — TIME FOR FILING — STATUTORY PROVISIONS.

Under Rev. St. 1909, § 2029, as amended by Laws 1911, p. 139, authorizing bills of exception to be filed at any time before the appellant shall be required to serve his abstract of the record, it was not ground for dismissing an appeal that the bill of exceptions was not filed within the time allowed by the trial court.

2. APPEAL AND ERROR (§ 842) — REVIEW — QUESTIONS OF FACT.

In an action for injuries to a person struck by an automobile, where, though there was evidence that a street car had passed its usual stopping place, and stopped only for fear of becoming involved in the collision, and that the automobile driver gave ample warning of the automobile's approach, there was other evidence that no warning was given, and that the car stopped at or near its usual stopping place to allow plaintiff to get aboard, these were questions for the jury, and not for an appellate court.

3. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS — OPERATION OF AUTOMOBILES.

Under the Motor Vehicle Statute (Laws 1911, p. 326) § 8, par. 2, providing that in approaching or passing a street car which has been stopped to allow passengers to alight or embark, the operator of every motor vehicle shall slow down, and if necessary for the safety of the public, bring his vehicle to a full stop, it was the duty of an automobile driver to slow down or stop when about to pass a street car, which had stopped to allow passengers to alight or embark, though his automobile was going no more than six miles an hour.

4. APPEAL AND ERROR (§ 927) — REVIEW — DENIAL OF NONSUIT.

In passing upon the question whether plaintiff made out a case for the jury, the evidence must be considered in the light most favorable to him, where the jury's verdict is in his favor.

5. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREETS — CONTRIBUTORY NEGLIGENCE.

Where a person looked for approaching automobiles while walking from the sidewalk to the street car tracks, he was not negligent as a matter of law in then devoting his attention to a street car and to his purpose of boarding it, instead of watching for automobiles.

6. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS — OPERATION OF AUTOMOBILES.

Under Motor Vehicle Statute (Laws 1911, p. 326) § 8, par. 2, the stopping of a street car at its usual place was sufficient to warn a chauffeur that a person might be on the street at that point to board the car, and made it his duty to slow down and stop if necessary, though he did not see a person about to board the car.

7. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREETS — OPERATION OF AUTOMOBILES.

Where an automobile driver turned to the left in passing a vehicle traveling in the same direction, and a standing automobile, and then turned back to the right, crossed street car tracks, and attempted to pass a car standing at a usual stopping place, without reducing his speed or giving warning, the jury were justified in finding that he was negligent, and that his negligence was the sole cause of an injury to a person struck by the automobile as he was passing around the car to board it, as it was for the jury to determine whether he exercised the highest degree of care that a very careful person would use under like or similar circumstances, as required by Motor Vehicle Statute (Laws 1911, p. 330) § 12, of persons operating automobiles on public roads, etc., or places much used for travel.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Action by William Grouch against Mrs. C. A. Heffner. From a judgment for plaintiff, defendant appeals. Affirmed.

Lee B. Ewing, of Jefferson City, and Chas. E. Gilbert, of Nevada, Mo., for appellant. Scott & Bowker, of Nevada, Mo., for respondent.

TRIMBLE, J.

While plaintiff was in the street attempting to board a street car he was knocked down and injured by a passing automobile. He sued for damages, and recovered judgment in the sum of $450. Defendant has appealed.

The injury occurred in Cherry street in the city of Nevada. This street runs west from the depot to and along the south side of the public square. At the southeast corner of the Square, Cherry street is intersected at right angles by Cedar street running north and south. An electric street railway track lies in the center of Cherry street, with about 15 feet of space on each side of the track between it and the curb. About 10 o'clock in the morning of July 28, 1913, plaintiff was on the sidewalk in front of a store on the north side of Cherry street some 60 or 80 feet east of the east line of Cedar street. A street car was going east on Cherry and was approaching the place at or near the crossing on the east side of the street intersection, where stops were usually made to let off and take on passengers. Plaintiff wanted to catch the car and go east to the depot. He, therefore, walked west along the sidewalk on the north side of Cherry street for a distance of 12 or 15 feet, and then left the sidewalk and went out into the street in a southwest direction to the track in order to board the car. The street car stopped as plaintiff reached the track, but as the entrance to the car was on the south side of the car at the front or east end, plaintiff could not board the car from his side, and therefore was about to cross the track in front of the standing street car in order to board it, when defendant's automobile coming west on Cherry struck him and knocked him down.

Respondent has filed with his brief a motion to dismiss the appeal on the ground that the abstract shows no order of the trial court granting time for the filing of the bill of exceptions or an extension thereof, and that the abstract does not show the bill was filed within such time, if it was granted and extended. This defect would be fatal to appellant's appeal were it not for the amendment to section 2029, R. S. Mo. 1909, approved March 13, 1911, authorizing bills of exception to be filed "at any time before the appellant shall be required * * * to serve his abstract of the record." Laws Mo. 1911, p. 139. The bill of exceptions was filed on May 14, 1914, and, under the above amendatory statute, it was properly filed whether within or without the time allowed by the trial court. State v. Rogers, 253 Mo. 399, 161 S. W. 770. The motion to dismiss must be, and is, overruled.

Paragraph 2 of section 8 of our Motor Vehicle Statute (Laws Mo. 1911, p. 327)...