Holmes v. McNeil

• Decision Date: 14 July 1947
• Docket Number: 40097
• Parties: Z. T. Holmes v. William John McNeil and D. Edward Palmer, Appellants
• Court: Missouri Supreme Court

203 S.W.2d 665

356 Mo. 763

Z. T. Holmes v. William John McNeil and D. Edward Palmer, Appellants

No. 40097

Supreme Court of Missouri

July 14, 1947

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Henry M. Shughart for William John McNeil and Harry P Thomson, Jr., for Daniel Edgar Palmer, appellants.

The trial court erred in granting plaintiff's motion for a new trial because the plaintiff's own evidence showed that the defendants were not guilty of negligence in any respect. Steele v. Kansas City So. Ry. Co., 265 Mo 97, 175 S.W. 177; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Ellis v. Wolfe-Shoemaker Motor Co., 227 Mo.App. 508, 55 S.W.2d 309; 1 Blashfield's Cyclopedia of Automobile Law and Practice, p. 468; Cohen v. Petty, 65 F.2d 820; Armstrong v. Cook, 229 N.W. 433; LaVigne v. LaVigne, 158 P.2d 557; Bushnell v. Bushnell, 103 Conn. 582, 131 A. 432; Thayer v. Thayer, 286 Mich. 273, 282 N.W. 145.

Claude L. Schenck for respondent.

The trial court did not err in granting plaintiff's motion for a new trial for the reason plaintiff's evidence raised a submissible question for the jury of negligence by defendants in the operation of their automobile. Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21; Kaley v. Huntley, 88 S.W.2d 200.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for $ 15,000 damages for loss of services of plaintiff's wife alleged to have been occasioned by defendant's negligence. At the close of plaintiff's case the court directed a verdict for defendants. A motion for a new trial was subsequently sustained on the ground of newly discovered evidence. Defendants have appealed.

Plaintiff's wife received personal injuries when the automobile in which she was riding with both defendants and another person collided, head on, with an electric light pole, near the intersection of Admiral Boulevard and Cherry Street in Kansas City. The automobile was owned by one defendant and was operated by the other. Plaintiff charged that the defendants negligently operated the automobile as follows: (1) "without keeping the same under control," (2) "without keeping a careful lookout ahead," (3) "at an excessive rate of speed," and (4) in violation of an ordinance of Kansas City requiring the exercise of the highest degree of care in the operation of a vehicle and operation at a reasonable rate of speed under the conditions then existing. Plaintiff claimed damages for loss of the society and services of his wife on account of her injuries and for having to pay for nursing and medical attention.

Defendant Palmer, by answer, admitted the operation of the automobile at the time and place alleged and denied other allegations. Defendant McNeil admitted ownership of the automobile, denied that defendant Palmer was his agent or acting in the course of any employment in the operation of the automobile and denied other allegations. The cause was tried to a jury and a verdict directed, as stated.

Appellants assign error on the action of the trial court in granting a new trial to plaintiff (1) because "plaintiff's own evidence showed that the defendants were not guilty of negligence in any respect," and (2) because plaintiff's motion for a new trial was insufficient in form and substance to authorize a new trial on the ground of newly discovered evidence.

The sufficiency of the evidence to show that plaintiff's wife was injured and that plaintiff suffered the loss of her society and services, and was damaged thereby, is not questioned. In view of the issues presented, we will review only the evidence favorable to plaintiff on the issue of negligence.

Plaintiff's wife was his only witness on the issue mentioned. On direct examination she testified that she saw defendant Palmer and his wife at Wendell's Tavern in Kansas City on July 10, 1944, about 5:45 p.m. and invited them to her apartment at 3521 Baltimore. They came there and, later the same evening, defendant McNeil called plaintiff's wife and invited her out to dinner. She explained to him about the Palmers having recently been married and having come to her apartment for the evening and Mr. McNeil invited all of them to go out to dinner with him. They met Mr. McNeil at Wendell's Tavern about 9 p.m. They visited other taverns and, later, they went in Mr. McNeil's automobile to Sixth and Cherry, to Il Pagliaccio's, for dinner, but the place was closed and they decided, at witness' suggestion, to go to the Savoy. Mr. McNeil had been driving, but at that time about 11 p.m., Mr. Palmer was driving. Mrs. Holmes was in the front seat with him and Mr. McNeil and Mrs. Palmer were in the back seat. Mr. Palmer drove east, turned right and went south on Cherry to Admiral Boulevard. On the way, Mr. Palmer said he didn't know where the Savoy was located and Mr. McNeil told him to turn right on Admiral Boulevard at the next corner. Mr. Palmer made the stop at the stop sign, "approximately 10 feet or so north of the curbing there," with the front of the car even with the stop sign. He had come up a steep grade from Sixth Street and the automobile was still "on the hill" when stopped. "Mr. Palmer shifted gears, started the car forward into the intersection to make a right turn." The street lights were on and the intersection at Admiral Boulevard was well lighted. There was no traffic. The automobile headlights were on and also a dash light in the automobile. The road ahead was smooth and there were no obstructions. The weather was hot and clear, the streets were dry. The automobile, a 1942 Buick, "was in good working condition."

The witness testified further substantially as follows: The automobile started around the turn to the right at the intersection at 4 or 5 miles per hour, when "all of a sudden the car swerved to the left in a southwesterly direction, the motor racing, and we were headed for a pole. . . . Well, we eventually crashed the pole, but the first thing I did, when the car was getting past the center of the street there and I noticed it was getting out of control, I looked at Mr. Palmer, and I noticed that he was bent over the wheel there groping down at the floor with his left hand. I shouted at him, I shouted, 'Eddy', I tried to reach the emergency brake, but I couldn't reach it because it was on the left hand side of Mr. Palmer and I couldn't get to it. So then I braced myself for the crash." The witness later said: "Mr. Palmer put the car in gear and the car lurched forward to the top of the hill there as he went into the intersection to make that turn."

Immediately prior to the crash, witness could see Mr. Palmer clearly. His right hand was on the steering wheel and "his left hand was down toward the floor boards of the car, he was groping with that hand." She could see the right side of his face, and his right eye was open. She observed his right eye being open, when the automobile was "just past the center of the street, after the car started to swerve." The car moved approximately 100 to 120 feet from the stop at the intersection to the point of impact at the light pole. The speed of the automobile immediately prior to the impact was estimated at between 20 and 25 miles per hour. No tires blew out immediately prior to the crash or before the automobile struck the pole. Mr. Palmer had not complained about the operation of the automobile, but had said it was "a honey."

On cross-examination the witness said that Mr. Palmer took over the driving at 27th and Gillham Road. He was not under the influence of liquor and drove "perfectly all right," and no complaints were made. She first noticed anything unusual "after he had gone into the intersection there to make this turn when the car started swerving across the street, . . ." When he first started up, after the stop "he seemed to have the motor racing quite a little, but that was all." He was out into the intersection before she "looked over and saw him bent over the wheel." She admitted her prior testimony, and said she didn't want to change it, wherein she had said, "He had just made the turn, was turning the car to the right and I noticed the car start to go toward the middle of the street, and I looked at Mr. Palmer and he was kind of slumped over the wheel, looking down." She said she considered anyone not sitting up to be "slumped." Prior to the time she saw Mr. Palmer slumped over the wheel, his wife had told her about him having had "an injury of some sort but nothing had been mentioned about it that night at all." She later learned of his foot injury. The witness admitted that she had previously testified that sometime after the collision, Palmer told her "that he had hurt his foot," but she said she did not know it was while he was driving the car until she read it in his deposition.

On re-direct examination the witness admitted that she had previously testified by deposition as follows: "Q. Do you know of your own knowledge what happened there when he started up at that intersection? A. No, I didn't know what was happening. I noticed the car was getting toward the middle of the street instead of staying on the right hand side like he had turned and I looked at him and he was bent over the wheel, and I couldn't get to the emergency brake, because it was on the left side of him, and I looked up and saw that pole and the crash took place." After the collision, witness suggested to Mr. and Mrs. Palmer that they "get away from the car" and they left, "one at a time." Both plaintiff and Mrs. Holmes testified concerning their marriage in 1934 and that they were living at 3521 Baltimore in Kansas City at the time Mrs. Holmes was injured. The ordinance pleaded was offered in evidence.

At the close of plaintiff's evidence, the defendants...