Jones v. Southwest Pump & Machinery Co.

• Decision Date: 22 May 1933
• Citation: 60 S.W.2d 754,227 Mo.App. 990
• Parties: JENKINS D. JONES, RESPONDENT, v. SOUTHWEST PUMP & MACHINERY COMPANY, APPELLANT
• Court: Kansas Court of Appeals

60 S.W.2d 754

227 Mo.App. 990

JENKINS D. JONES, RESPONDENT, v. SOUTHWEST PUMP & MACHINERY COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

May 22, 1933

Appeal from Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

Woodruff & Gard for respondent.

P. E Reeder, David R. Derge and Winger, Reeder, Barker, Gumbiner & Hazard for appellant.

OPINION

BLAND J.

This is an action for the loss of services of plaintiff's wife, suffered as a result of personal injuries received by the latter in an automobile collision. Plaintiff recovered a verdict and judgment in the sum of $ 2,500 and defendant has appealed.

The facts show that on the morning of November 7, 1930, plaintiff's wife was riding in an automobile being driven by her daughter from Kansas City to Excelsior Springs, on a mission of the mother. The collision occurred upon Highway No. 69, when the car being driven by the daughter reached a point about half way between Kansas City and Liberty. Highway No. 69 has an eighteen foot pavement in its center with a black line running in the middle and lengthwise thereof. Plaintiff's daughter was driving the car, a Pontiac, and in the front seat with her was one Clyde Crain, who was riding as a passenger. The mother was in the rear seat. The day was fair and the pavement dry. As the Pontiac automobile, going toward the east, emerged over the brow of a hill some 625 feet from the point of the collision a stationary Ford coach belonging to the defendant, and in charge of one Wright, its agent and servant, as driver, came into view. There was no other traffic in sight. Wright was seated in the coach, but the occupants of the Pontiac testified that they did not see anyone in the other car. The Ford was parked on the south edge of the pavement, and parallel thereto, facing east, the direction in which the Pontiac was going. One-half of the Ford was on the pavement and the other half on the dirt shoulder and opposite a mail box attached to the top of a post. Wright had stopped at the mail box for the purpose of inserting defendant's advertising matter therein and was ready to go on toward Excelsior Springs, his destination.

From the time the Pontiac came over the brow of the hill until it reached the point of the collision it was proceeding at a rate of speed of about twenty miles per hour. It was being driven upon the righthand, or the south half of the pavement, and when it approached the Ford the driver veered it to the left in order to go around the parked car. When the front of the moving vehicle reached a point five or six feet from the front end of the Ford the latter suddenly started, turning to the left, and causing the front fenders and the hub caps of the two cars to come together. When the cars collided the driver of the Pontiac lost control of her car, and ran into a ditch some distance ahead. As a result of the collision plaintiff's wife was thrown against the rear window of the car and she was severely cut by the breaking of the glass thereof.

In traversing the space between the brow and the hill that we have mentioned, and the point of the collision the Pontiac came down and crossed a low place and was proceeding up another hill when the collision occurred. The point of the collision was about 130 feet from the brow of the second hill, which was east from the collision. From the photographs introduced in evidence it would appear that it would be difficult to see a car approaching from the other side of the second hill, or in the opposite direction from which the Pontiac was going, as there was also a downward grade on toward the east from the top of that hill.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. In view of this contention we have stated the evidence in its most favorable light to the plaintiff.

Defendant insists that section 7777 (g), Revised Statutes 1929, providing, among other things, that in municipalities no vehicle shall move from the side of a highway into the line of moving vehicles unless the highway is sufficiently free from approaching vehicles, etc., has no application, citing in support thereof the case of Wilhelm v. Hersh, 50 S.W.2d 735, and that Wright was not guilty of negligence in so moving his vehicle without warning.

The undisputed testimony shows that Wright started up his car and moved it in front of the approaching Pontiac car without any warning. While the statute has no application to the facts in this case, we are of the opinion that, at common law, the conduct of Wright, in suddenly moving his car from a standing position to a point in front of the approaching Pontiac was sufficient from which the jury could say that he was negligent, under the circumstances. [Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Elvidge v. Stronge & Warner Co., 181 N.W. 346; Litherbury v. Kimmet, 183 Cal. 24, 195 P. 660; Belleville v. Ingram, 230 Mich. 462, 202 N.W. 945; Lee v. Donnelly, 95 Vt. 121, 113 A. 542; Buckbee v. Schofield (Conn.), 143 A. 884.] In Budnitzky v. Am. Stores Co., 96 Pa.Super. 21, 23, 24, the court said:

"Defendant's driver admitted that he had driven the truck out into the road, in order to get around and ahead of his companion truck, without looking to see whether any vehicle was approaching from the rear. His excuse was that the cab of the truck was so constructed that he could not look around unless he got on the running board. But that was not a valid excuse for cutting into the road ahead of plaintiff's near approaching truck.

"If he had no mirror or other device which enabled him to see the road to the rear he was operating the truck in violation of the provisions of the Motor Vehicle Act of 1919, P. L. 678, section 21. His car was parked closely behind the defendant's other truck and could not move directly ahead, but had to be driven out nearly across the roadway in order to get around the truck in front. He was bound to see that approaching traffic was not endangered by his movement before he attempted it and his failure to do so was negligence. Putting out his hand, even if it be believed that he did so, did not give him the right to cut into the road regardless of approaching vehicles."

While, in the case at bar, Wright testified that he looked, before starting his car, into his rear vision mirror and saw no car approaching, it was for the jury to say whether that looking was not negligently done, in view of the fact that approximately twenty-one seconds of time transpired between the time the Pontiac emerged from over the brow of the hill from the west until the time of the collision.

However, in connection with the contention that the demurrer to the evidence should have been sustained, defendant's main insistence is that the driver of the Pontiac was guilty of contributory negligence, as a matter of law, in attempting to pass the Ford car too near and without slackening the speed of the Pontiac and sounding a warning.

We are of the opinion that we would not be justified in saying that the driver of the Pontiac was guilty of negligence, as a matter of law, in driving so close to the Ford car. Of course, in the very nature of things, there could be no evidence of exactly how much space the driver of the Pontiac car left between her car and the Ford in passing the latter. According to the testimony of defendant's witness, Wright, he had barely moved his car to the left when the collision occurred, his theory being that, in turning his front wheels to the left, the hub cap of his left front wheel would go under the fender of his car and he testified that his fender merely had a groove along its edge, indicating, as the collision was between the hub caps of the two cars, that he had barely begun to move and that he had not turned his wheels any appreciable extent to the left when the collision occurred. He testified that when he started up he intended, not to make an abrupt turn to the left but, as he intended to go on up the road toward the east, he started up in that direction, intending to gradually get back upon the pavement. It was Wright's opinion that he had not moved, at the time of the collision, as much as twelve inches.

However, there was other testimony tending to show that Wright's turn to the left was more or less abrupt. The occupants of the Pontiac car described the turning of the Ford car at the time of the collision in the following language: He "turned right into the highway." "He knocked us plum over on the other side of the pavement." "He turned right into the highway." "He immediately pulled in front of me or pulled into the side of my car and I threw my car over to the left." "I didn't think we side-swiped, I thought he drove into me." "He started and pulled toward the left." "He turned it (the Ford) and pulled up in front of me." "He darted right out into the side of us." The collision resulted in the hub cap of the right front wheel of the Pontiac being broken off, the left front fender being bent and the spindle arm, which operated the steering apparatus, bent about an inch and a half out of line.

The evidence shows that the Ford car was five or six feet in width. Taking the latter figure, three feet of the pavement, which was eighteen feet in width, was occupied by the Ford, leaving six feet of the nine feet of pavement reserved for eastbound traffic. If the Pontiac was as wide as the Ford, it could have passed as far as three feet from the Ford if the driver of the Pontiac had the ability to drive with the left side of the car exactly upon the black line dividing the pavement.

On cross-examination, the witness, Crain, testified:

"Q. She couldn't pass it (the Ford) and stay on the right-hand side? A. ...