Lee v. Shryack-Wright Grocery Co.

• Decision Date: 03 October 1932
• Docket Number: No. 17521.,17521.
• Citation: 53 S.W.2d 406
• Parties: LEE v. SHRYACK-WRIGHT GROCERY CO. et al.
• Court: Missouri Court of Appeals

53 S.W.2d 406

LEE v. SHRYACK-WRIGHT GROCERY CO. et al.

No. 17521.

Kansas City Court of Appeals. Missouri.

October 3, 1932.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be officially published."

Action by Lois Lee against Shryack-Wright Grocery Company and another. Judgment for plaintiff and defendants appeal.

Reversed and remanded.

Cowgill & Popham, of Kansas City, James T. Montgomery, of Sedalia, and John F. Cook, of Kansas City, for appellants.

W. W. Blain, of Sedalia, for respondent.

BOYER, C.

This action was instituted by the widow of James Lee to recover for his death which was alleged to have been caused by the negligence of defendants in an automobile collision. The tragedy occurred on March 6, 1931, at the intersection of Massachusetts street, extending north and south, and Seventh street, extending east and west, in the city of Sedalia. Both streets were thirty feet wide. The defendant grocery company owned a Chevrolet car which was being used by its employee and codefendant Parsons in the performance of work for the company.

The evidence favorable to the plaintiff shows that the decedent was riding in a Buick automobile operated by one Perriguey on the north side of Seventh street in a westerly direction toward Massachusetts street; that the Buick car was driven at a rate of about fifteen miles an hour into the intersection; that at the time it reached the intersection the Chevrolet car driven by Parsons was approaching from the south and was then 15 or 25 feet south of the south curb line of Seventh street, and was being driven at the rate of 35 or 40 miles an hour; that the Buick car entered the intersection first, and was near or past the center line of Massachusetts street when the Chevrolet car was driven against the Buick car without warning, and struck it near the rear door with great force. The Buick car skidded or was thrown to the northwest corner of the intersection against the street curbing; one wheel was broken down, and the car turned over. It landed on the space between the curb and the sidewalk, pointing almost in the opposite direction to which it had been traveling. The car fell upon plaintiff's husband, and from the injuries then received he died within a very short time. There was a mist of rain and snow falling, and there was some evidence that the windshield on the Chevrolet car was so covered as to obstruct vision, but that the windshield on the Buick car was clear, and the driver of that car had an unobstructed view.

Evidence on behalf of the defendants shows that the Chevrolet car was being operated by Parsons northwardly in Massachusetts street at the rate of 15 or 20 miles an hour, and that it had entered the intersection for a distance of about 12 feet before the Buick car reached the intersection; that the Buick car approached and entered the intersection at an excessive speed, and endeavored to pass in front of the Chevrolet car and in such close proximity that a collision was unavoidable. It was admitted that the lawful rate of speed was 20 miles per hour, and that a section of the city ordinance pertaining to the right of way at intersecting highways was the same as the state law on the subject.

The verdict and judgment were for the plaintiff. Defendants duly appealed, and assign errors arising upon instructions given for the plaintiff. The principal complaint is against instruction No. 1. It purports to cover the case, and authorizes a verdict for plaintiff upon a finding of the facts outlined. Among other facts, it requires a finding that the driver of the Chevrolet car reached the south curb line of Seventh street at said intersection after or approximately at the same time that the Buick car reached the east curb line of Massachusetts street, and then outlines the finding of negligence to authorize a verdict in the following manner: "And that J. W. Parsons failed to allow the Buick car to proceed across said intersection, if so, and carelessly drove the Chevrolet car into and against the Buick car, and that a collision between the Chevrolet car and Buick car ensued in said intersection and that the failure, if so, of J. W. Parsons to allow the Buick car to proceed across said intersection, and the careless driving, if any, of the Chevrolet against the Buick car, if so, was the proximate cause of said collision, or if you believe and find from the evidence that J. W. Parsons drove the Chevrolet car north on Massachusetts Street in Sedalia, Missouri, at a rate of speed in excess of twenty miles per hour and into said intersection at a time when the Buick car driven by L. M. Perriguey had entered said intersection, if so, and that such acts of the said J. W. Parsons, if you so find, were the proximate cause of a collision between the Chevrolet car driven by him and the Buick car driven by L. M. Perriguey and if you further find and believe from the evidence that by reason thereof James S. Lee received mortal wounds from which he died; and that plaintiff has been damaged thereby, then your verdict will be for the plaintiff and against both of the defendants."

It is contended that this instruction submits questions of negligence not alleged in the petition; that it authorizes a finding upon general negligence, and does not submit the specific acts of negligence pleaded and shown by the evidence; that it is misleading, confusing, and invites speculation. Other criticisms are also offered, but we think the foregoing sufficient to condemn the instruction as reversibly erroneous, in view of the pleadings...