Howlett v. Randol
| Decision Date | 25 May 1931 |
| Docket Number | No. 17203.,17203. |
| Citation | 39 S.W.2d 463 |
| Parties | HOWLETT v. RANDOL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.
"Not to be officially published."
Action by Raymond M. Howlett against Fred L. Randol. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
H. M. Griffith, of Kansas City, for appellant.
Ellison & Dabbs, of Kansas City, for respondent.
Action for damages. Plaintiff parked his automobile next to the curbing on the right side of a public street in Kansas City, and while it was thus standing a heavy truck owned by defendant and operated by his employee collided with the car and practically destroyed it. Plaintiff had judgment for $375, and defendant duly appealed.
Under point 1, appellant says that the verdict is against the weight of the evidence and against the law; and under point 5, that defendant made out a clear case of inevitable accident. There is evidence that plaintiff's car was stationary at a proper place; that defendant's employee was operating a truck heavily loaded and approached the automobile from the rear, struck it with such force as to drive it against another car, and both cars were greatly damaged. Immediately after the collision the driver of the truck said "his brakes wouldn't hold and he could not do anything with it." An experienced mechanic owned the other car that was damaged and was near by at the time and examined the truck, and said: "I found the emergency brake was very nearly worn out; the foot brake was in bad condition—no control on the foot pedal whatever,—you could push it all the way to the floor board and get no results." Evidence on behalf of defendant tended to show that the brakes on the truck were in good condition and that the driver lost control of the truck because a spring broke in the steering device which rendered control impossible.
The jury was not required to accept and believe defendant's evidence or to adopt his theory of the accident. The weight of the evidence was for its decision. Under the law the fact that defendant's truck collided with plaintiff's stationary automobile, under the circumstances shown, made a prima facie case of culpable negligence against defendant. Such things do not happen in the ordinary course of events. Under authority of Rockenstein v. Rogers (Mo. Sup.) 31 S.W.(2d) 792, 798, the points mentioned are ruled against appellant.
Assignment 2 is that the court erred in admitting incompetent, irrelevant, and immaterial evidence offered by plaintiff. Under this point appellant argues improper conduct on voir dire examination of the jury. We do not find any sufficient exception saved to the proceeding about which complaint is made; and, further, the subject was not presented to the trial court in the motion for new trial. Under the circumstances the error, if any, is not reviewable.
Assignment 3 is that the verdict is excessive. There was evidence that plaintiff's car was of the value of $500 or more prior to the damage and of the value of $125 after damage. The verdict was supported by the evidence.
Under point 4 it is urged that during the trial plaintiff mingled and...
To continue reading
Request your trial
-
Ruehling v. Pickwick-Greyhound Lines
... ... Parrish, 270 S.W. 688, 307 Mo. 455; Harmon v ... Irwin, 219 S.W. 392; McCahon v. Quick Service ... Laundry Co., 263 S.W. 238; Howlett v. Randol, ... 39 S.W.2d 463; State ex rel. Ward v. Trimble, 39 ... S.W.2d 372, 327 Mo. 773; Campbell v. Campbell, 20 ... S.W.2d 655. (3) ... ...
-
Pollard v. Whitener, WD
...error occurred during the voir dire examination. As a result, the appellate court held that there was no appellate review. 39 S.W.2d 463, 464 (Mo.App.1931). See also McDonnell v. Cornelison, 25 S.W.2d 558, 561-61 In this case, the plaintiffs argue that they provided the grounds for their ob......
-
Harrison v. St. Louis-San Francisco Ry. Co.
... ... will not constitute reversible error, unless the discretion ... is abused. [ Howlett v. Randol (Mo. App.), 39 S.W.2d ... 463; Coats v. Lynch, 152 Mo. 161, 53 S.W. 865; ... Pritchard v. Thomas (Mo.), 192 S.W. 956.] We do not ... ...
-
Hannah v. Butts
...v. Met. St. Ry. Co., 225 Mo. 99, 123 S.W. 877. Because it was not presented to the court in the motion for new trial. Howlett v. Randol (Mo. App.), 39 S.W.2d 463; Gary v. Averill, 12 S.W.2d 747; Adams Kendrick, 11 S.W.2d 16; Grott v. Johnson, 2 S.W.2d 785; Huhn v. Ruprecht, 2 S.W.2d 760. (b......