James v. Ray, 6974

Decision Date20 January 1954
Docket NumberNo. 6974,6974
PartiesJAMES et al. v. RAY.
CourtMissouri Court of Appeals

Harold D. Jones, of New Madrid, James Haw, of Charleston, for appellant.

Ward and Reeves and R. W. Hawkins, of Caruthersville, for respondents.

BLAIR, Judge.

This is a suit for $5,000 for damages on account of injuries alleged to have been sustained by plaintiff Frank J. James, on August 3, 1947, in an automobile collision with defendant, on Highway 61, near Portageville, in New Madrid County, Missouri. From the date of the occurrence of the accident, the case has sustained a most unusual career. On March 14, 1950, the regular judge of Mississippi County disqualified himself as the trial judge. A change of venue was taken from New Madrid County and the case was sent to Mississippi County, where it was tried by Honorable Norwin D. Houser, a Judge of the 27th Judicial Circuit of this State, and a jury. Plaintiff Gilbert James also filed a petition, claiming that he owned the car that was in the collision. collison.

After the testimony was finished and Judge Houser had instructed the jury, it unanimously returned a verdict for plaintiff Gilbert James in the sum of $333, and nine of the jurors returned a verdict for plaintiff Frank J. James for $1,000. The trial judge rendered judgment in accordance with the verdicts of the jury. Defendant has appealed to this Court.

The above-recited facts sometimes occur in a case before this Court; but the subsequent events are rather unusual in any case. Owing to the illness of the stenographer, the transcript on appeal was not prepared until May 15, 1952. Since then one of the defendant's attorneys has been elected as Probate Judge of Mississippi County, and contended that he is no longer a competent attorney in the case, and withdrew. One of the leading lawyers for defendant became sick and disabled and subsequently died therefrom. The case on appeal was continued from term to term, for different reasons, until the October Session, 1953, thereof.

Before the trial, plaintiff Frank J. James filed an amended petition in five counts, and plaintiff Gilbert James also filed an amended petition. Both of such amended petitions were by entirely different attorneys. Defendant filed an answer in several counts, blaming the collision upon plaintiff Frank J. James, and praying to be dismissed as to plaintiff Gilbert James. Defendant also filed a counterclaim, alleging that the collision was due to the fault of plaintiff Frank J. James, and demanded damages for the injuries he claims to have received from the collision with plaintiff Frank J. James.

The trial started and plaintiff Frank J. James' witnesses claimed that he was on the east side and that he had stopped for a short time at a filling station to correct poor lights on his automobile, and that he was driving over on the east side of Highway 61 when defendant was driving on the west side. The testimony tended to show that defendant was going south on the west side of Highway 61 and swerved to the east side of the highway and ran into the automobile operated by plaintiff Frank J. James.

The testimony of defendant tended to show that plaintiff Frank J. James was drinking while operating his car. Plaintiff Frank J. James' testimony tended to show that defendant was going south on the west side of the highway and swerved to the east side of the highway, where plaintiff Frank J. James was at the time.

The testimony of defendant tended to show that plaintiff Frank J. James was drinking, but he operated his car whether drinking or sober, and was in the proper place at the time. There was only one light in the front of plaintiff Frank J. James' automobile. Defendant's testimony tended to show that at no time did plaintiff deny that. The center line in the middle of the Highway was on the left side of plaintiff.

Plaintiff Frank J. James claimed that the collision knocked him down on the pavement, inflicting a cut on his forehead, and other injuries, which laid him up unconscious in the hospital for over twelve hours. The accident happened shortly after midnight and plaintiff Frank J. James was not discharged from the hospital until about 5:00 o'clock in the afternoon. Both plaintiff Frank J. James and defendant testified to severe injuries. The jury evidently believed such plaintiff and his witnesses.

But for the misconduct of defendant in driving to the east side of the highway, the collision would not have happened, regardless of whether or not plaintiff Frank J. James was intoxicated. Section 304.010 RSMo 1949, V.A.M.S. The statute cited shows that, if the jury believed the witnesses of plaintiff Frank J. James, which the jury had the right to do, the blame was on the part of defendant, and not on the part of plaintiff Frank J. James.

The highway patrolman who arrived on the scene only a few minutes after the collision occurred, corroborated plaintiff Frank J. James, especially as to the position of his car. The jury had the right to think that such plaintiff was on the east side of the highway going north, and to disbelieve defendant's story...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT