Hires v. Letts Melick Grocery Co.

• Decision Date: 25 June 1927
• Docket Number: No. 25813.,25813.
• Citation: 296 S.W. 408
• Parties: HIRES v. LETTS MELICK GROCERY CC.
• Court: Missouri Supreme Court

296 S.W. 408

HIRES v. LETTS MELICK GROCERY CC.

No. 25813.

Supreme Court of Missouri, Division No. 1.

June 25, 1927.

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

Suit by George W. Hires against the Letts Melick Grocery Company. Verdict for defendant. From an order sustaining plaintiff's motion for a new trial, defendant appeals. Affirmed.

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

Miles Elliott and Duvall & Boyd, all of St. Joseph, for respondent.

LINDSAY, C.

The defendant's appeal is from an order sustaining the plaintiff's motion for a new trial following a verdict in favor of defendant. The suit is one for personal injuries sustained by plaintiff, when a Ford automobile which he was driving and a motor truck owned by defendant, and driven by one of its employees, collided.

The petition alleged that plaintiff was driving west on Valley street, an east and west street in the city of St. Joseph; that defendant, by its servant, was operating and running a large motor truck in an easterly direction on said street, and so negligently and recklessly handled and managed said truck as to cause it to come into violent collision with plaintiff's automobile, whereby plaintiff was thrown out and injured.

The sum asked in damages was $15,000. The negligence charged was that defendant's servant, driving eastward on said street, negligently drove the truck upon the left-hand side, and north of the center, of said street, and negligently drove the said truck against the plaintiff's automobile when there was ample room for defendant's truck to pass to the south of plaintiff's automobile, without injury to plaintiff, and that defendant negligently failed to stop said truck, or slacken its speed, or to change its course, before running into plaintiff. The answer, after a general denial, pleaded contributory negligence on the part of plaintiff. Defendant alleged that its truck being driven eastward was driven upon the right-hand side of the street, and in a lawful and proper manner; that plaintiff, in approaching the said truck, drove his automobile to the left of the center of the street, and out of its proper position, and upon and against defendant's truck; that plaintiff negligently drove his automobile at a high and excessive rate of speed in approaching defendant's truck, and negligently failed to use his sense of sight and observation for his own safety, in the management of his automobile, and carelessly turned from the right-hand side of the street to the left-hand side thereof, and was driving in that position when he ran upon and against defendant's truck; that plaintiff, at the time, unlawfully and negligently drove his automobile while he was in an intoxicated condition and under the influence of intoxicating liquor, and that plaintiff negligently failed to turn his automobile to the right-hand side of the street when approaching the truck of defendant, so as to pass the same without interfering, and carelessly and negligently failed to check the speed of his automobile or to stop the same or to turn to the side in order to avoid a collision with defendant; that by the carelessness and negligence of plaintiff as aforesaid he directly contributed to and caused the injuries he received. The collision occurred at about 5 o'clock of an August afternoon, when it was clear. Valley street, whereon the collision occurred, runs east and west, and is intersected by Sherman street, running north and south. The plaintiff's home was at the southeast corner of the intersection of the two streets named, and the evidence was that the collision between these two vehicles occurred approximately 50 feet east of Sherman street, and at a point nearly north of plaintiff's said residence.

Plaintiff's evidence tended to show that, on the occasion in question, he was driving north of, or upon the right of the center of Valley street; that defendant's truck, having passed Sherman street, and proceeding eastward upon Valley street, was near the center-of Valley street; that the driver of the truck as he approached within a short distance of plaintiff's automobile was looking down at the seat to the right of him, that is, to the south; that about this time the truck turned to the northeast and collided with plaintiff's automobile.

There was sharp conflict in the testimony as to the circumstances. It is not necessary to go into detail, but enough to say that plain tiff had evidence to the effect that plaintiff was on the right or north of the center of Valley street, just prior to, and at the time of, the collision, and his automobile pointing west, and that the truck, as it approached near to plaintiff's automobile turned toward the northeast and struck the automobile, and was pointing northeast when the collision occurred. Some of the testimony for plaintiff was that plaintiff's automobile was going 12 or 15 miles an hour, and the truck 18 or 20 miles an hour. Defendant had testimony to the effect that, in approaching the place where the collision occurred, plaintiff's automobile was south of the center line of Valley street, and that the truck, after it crossed Sherman street and moved on eastward, was to the south of the center line of Valley street. The driver of defendant's truck testified that, as he went east and was approaching plaintiff's automobile, his truck was 3 or 4 feet from the south curb line; that plaintiff's automoile was on the south side of the street; that plaintiff was not looking straight ahead, but looking south. The driver of the truck testified that, after he saw plaintiff was not going to get out of his way, but kept coming west, he waited until plaintiff got 4 or 5 feet ahead of him, and then turned his truck a little north, and the automobile hit the truck.

Evidence for defendant was that the truck was going at slow speed—the driver said about 2 miles an hour—and other testimony for defendant was that the truck was geared so that it would not make a speed in excess of 15 miles an hour. Defendant had testimony tending to show that the plaintiff, at the time, had been drinking and was somewhat intoxicated. Plaintiff had testimony directly to the contrary.

The foregoing sufficiently outlines the `facts given in evidence. Under the case as made by the pleadings and under the conflicting evidence, as these vehicles nearly approached, each party contended it was the other who had his vehicle upon the wrong side of the center of the street, and was not looking ahead, and failed to turn his vehicle aside, or to stop or slow up; and, in addition thereto, is the contention of defendant that plaintiff was intoxicated. The court, in sustaining plaintiff's motion for a new trial, specified as the grounds therefor that defendant's instrucstructions 9 and 11 were erroneous. These instructions are as follows:

"D 9. The court instructs the jury that it was the duty of the plaintiff in this case in driving the automobile in which he was riding to drive it in a careful and prudent manner and to use the highest degree of care, which is the care that would be used by a very careful person tinder the same or similar circumstances in order to avoid a collision with the automobile truck then in the street. And in this connection you are further instructed that, if you find and believe from the evidence in this case that the plaintiff failed to...