Hellums v. Randol
| Citation | 40 S.W.2d 500 |
| Decision Date | 15 June 1931 |
| Docket Number | No. 17252.,17252. |
| Parties | JOE C. HELLUMS, DEFENDANT IN ERROR, v. FRED RANDOL, PLAINTIFF IN ERROR. |
| Court | Court of Appeal of Missouri (US) |
Harry G. Kyle and Walter A. Raymond for defendant in error.
H.M. Griffith for plaintiff in error.
Action for damages. The case is here on writ of error and as a matter of convenience the parties will be referred to by their designation below as plaintiff and defendant. Plaintiff sued to recover on account of personal injury and property damage to his automobile occasioned by the alleged negligence of the driver of defendant's truck. The truck was driven against plaintiff's car while in the intersection of two public thoroughfares in Kansas City. Plaintiff was injured and his car damaged. The jury awarded a verdict of $1667, and judgment was so entered for plaintiff. The assignment of errors and the points treated in the brief are the following: (1) The verdict is against the evidence, the weight of the evidence, and against the law. (2) The court erred in the admission of improper evidence. (3) Damages assessed are excessive. (4) The demurrer should have been sustained. (5) Plaintiff was guilty of contributory negligence. (6) Misconduct of counsel in asking leading questions.
There is no question of pleading in the case. The petition charges that the agent of defendant was negligent in that he drove the truck at a high rate of speed; failed to keep proper lookout or to stop, and that he negligently drove into said street intersection contrary to traffic signals and in violation of the traffic and speed ordinances of Kansas City, all of which directly caused the collision. The answer was a general denial and a plea of contributory negligence in that plaintiff failed to look out for his own safety and violated ordinances of Kansas City by driving his automobile into the street intersection contrary to traffic signals.
The evidence contained in the record favorable to the plaintiff shows the following state of facts: Southwest Boulevard extends diagonally from northeast to southwest. Broadway extends north and south and intersects Southwest Boulevard; they are both public thoroughfares; Broadway is sixty feet wide and Southwest Boulevard considerably wider. At this intersection there were maintained mechanical traffic signals showing the colors of red, amber, and green. Red indicated that traffic must stop, and green indicated the right of way for traffic; the amber color was shown for a brief interval between the other colors and indicated an impending change from red to green or the reverse. If traffic had entered the intersection before the green signal had changed to amber the traffic was to proceed across, and other traffic stop. On July 19, 1928, in the daytime, plaintiff was driving northeastwardly on Southwest Boulevard approaching Broadway. The signal light was green, indicating his right to proceed. He entered the intersection and proceeded beyond the center thereof and turned his car to the north intending to proceed in that direction on Broadway. While he was in the intersection the signal lights changed to green for Broadway and red for Southwest Boulevard. At this time defendant's truck was fifty feet or more east of the intersection on Southwest Boulevard approaching at a rate of thirty miles per hour. It continued without slackening speed and entered the intersection against the red signal. Plaintiff endeavored to escape, but the truck struck the automobile near the middle, shoved it a distance of forty feet across Broadway, causing it to collide with another automobile entering the intersection from the north, and then shoved plaintiff's automobile over to the curb and against a large steel pole on the northwest corner of the intersection. Plaintiff's injuries were such that he was assisted from his car and placed upon the terrace. While he was lying there defendant's driver of the truck looked down in his face and said: "I'll learn you to stay from in front of trucks." The driver then backed the truck away and drove on down the street at a rapid pace. Police officers overtook him, compelled him to stop, returned him to the scene of the accident, and placed him under arrest.
Points 1, 4, and 5 may be considered together inasmuch as the sufficiency of evidence and contributory negligence of plaintiff are necessarily included in a consideration of the ruling on the demurrer. In view of the evidence favorable to plaintiff the demurrer was properly overruled. It was competent for the jury to determine the weight of the testimony and to determine issues of fact upon conflicting evidence. There was substantial evidence to support the conclusion of the jury and we cannot heed the appeal of defendant that the evidence preponderates in his favor. We do not hold the scales with which to weigh the evidence and cannot perform that function in a law case. [Renfro v. Lazerine, 298 S.W. 1067, 1068; Missouri & Illinois Coal Co. v. Willis Coal & Mining Co. (Mo. Sup.), 235 S.W. 119, 123.]
Plaintiff was not guilty of contributory negligence as a matter of law. Defendant refers at length to portions of the evidence which he claims established the fact that the plaintiff drove into the intersection contrary to the signals and improperly managed his car so that it was placed in the road of the truck when he knew that by doing so he would be struck by the truck. Some of such evidence would tend to show that plaintiff was contributorily negligent, but that is not all of the evidence in the case. As heretofore stated, the evidence in plaintiff's favor is to...
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