Long v. Binnicker

• Decision Date: 11 September 1933
• Parties: WILLIAM J. LONG, RESPONDENT, v. HARRY BINNICKER, APPELLANT
• Court: Kansas Court of Appeals

63 S.W.2d 831

228 Mo.App. 193

WILLIAM J. LONG, RESPONDENT, v. HARRY BINNICKER, APPELLANT

Court of Appeals of Missouri, Kansas City

September 11, 1933

Appeal from Circuit Court of Buchanan County.--Hon. L. A. Vories Judge.

Reversed and remanded.

B. L Kaufmann and Culver & Phillip for respondent.

Landis & Landis for appellant.

CAMPBELL C. Reynolds, C., concurs.

OPINION

CAMPBELL, C.

Plaintiff brought suit to recover damages to his automobile and for the loss of society and service of his wife resulting from personal injuries to her, caused by a collision between an automobile owned and operated by him and in which his wife was riding and an automobile operated by the defendant. Trial resulted in verdict and judgment in favor of plaintiff in the sum of $ 1000. Defendant has appealed.

The place of collision was upon the intersection of Pacific Street, which runs east and west, and 11th Street, which runs north and south in the city of St. Joseph. The portion of each of said streets, used by vehicles, is thirty-six feet in width. Plaintiff testified that he drove his automobile eastward upon the south side of Pacific Street; that at the time of approaching said intersection he was travelling at a speed of ten to twelve miles per hour; that when he was near the west line of the intersection he looked in both directions along 11th Street but did not see the defendant's automobile; that he proceeded eastward and that when he was about ten feet east of the west line of the intersection his wife called his attention to the automobile being driven by the defendant, which was then upon the west side of 11th Street and "anywhere from the curb line to twenty-five feet north" and moving at a speed of thirty-five to forty miles per hour; that defendant turned the south bound automobile to the southeast and brought it into collision with plaintiff's automobile upon the southeast quarter of the intersection; that in consequence of the collision his automobile was damaged and his wife sustained personal injuries. The plaintiff further testified that there was a building on the northwest corner of the intersection "that comes out practically flush with the sidewalk, making it a regular blind corner."

Plaintiff introduced in evidence an ordinance of said city of St. Joseph, which provides that motor vehicles shall at all times be driven in a careful and prudent manner and that the driver shall exercise the highest degree of care regardless of speed limit therein provided, and shall at no time travel at a rate of speed so as to endanger the property, life or limb of any other person and provides that a speed in excess of twenty miles per hour, at the place in question, sustained for a distance of more than 300 feet shall be presumptive evidence of driving at a rate of speed which is not careful and prudent.

The defendant testified that the automobile which he was driving belonged to his brother, from whom he borrowed it; that he was driving on the west side of 11th Street at a rate of speed of twenty to twenty-five miles per hour and that as he approached the intersection he saw plaintiff's automobile coming toward the intersection; that at this time he, defendant, was ten feet from the intersection and that plaintiff's automobile was on the north side of Pacific Street about fifteen or twenty feet west of the intersection and travelling at a speed of forty-five to fifty miles per hour; that he applied the brakes and turned to the southeast; that plaintiff's automobile turned to its right and went across the street and that the automobiles collided at about the center of the intersection.

Plaintiff obtained three instructions, each of which authorized a verdict in his favor.

The first instruction told the jury that under the ordinance introduced in evidence it was the duty of defendant, upon approaching and entering the intersection, to use the highest degree of care in operating the automobile which he was driving and to operate the same at a rate of speed so as not to endanger the property, life or limb of any other person, and that a failure to exercise such degree of care in operating said automobile was negligence on his part, and that if the jury found that defendant operated his said automobile in violation of the ordinance at an excessive rate of speed "and so as to endanger the life and limb of plaintiff's wife or automobile when he arrived at and proceeded to cross said intersection," and that plaintiff at said time and place exercising the highest degree of care, and that as a direct consequence of said negligence on the part of defendant (if the defendant was thus negligent) plaintiff's automobile was damaged and his wife was injured, the verdict should be in favor of plaintiff. The instruction did not submit as to whether or not the automobile operated by defendant was driven for a distance of 300 feet at a prohibited rate of speed.

The second instruction told the jury that if plaintiff's automobile "reached the west line of the intersection . . a short time before or at the same time" that the automobile driven by the defendant arrived at the north line of the intersection, then plaintiff's automobile had the right of way across said intersection and if the automobile of plaintiff arrived at the west line of the intersection immediately before or at the same time that the automobile operated by the defendant arrived at the north line of the intersection, and that defendant negligently failed to reduce the speed of his automobile so as to give the right of way across said intersection to pl...