Long v. Fulkerson

• Decision Date: 30 April 1934
• Citation: 74 S.W.2d 879,228 Mo.App. 1230
• Parties: A. W. LONG, RESPONDENT, v. CLARENCE FULKERSON, APPELLANT
• Court: Kansas Court of Appeals

74 S.W.2d 879

228 Mo.App. 1230

A. W. LONG, RESPONDENT, v. CLARENCE FULKERSON, APPELLANT

Court of Appeals of Missouri, Kansas City

April 30, 1934

Appeal from Circuit Court of Linn County.--Hon. Paul Van Osdol Judge.

Judgment affirmed.

Thos P. Burns, Rex H. Moore and Platt Hubbell for respondent.

Paul D Kitt and Clark, Boggs, Cave & Peterson for appellant.

CAMPBELL, C. Reynolds, C., concurs.

OPINION

CAMPBELL, C.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. Plaintiff had a judgment in the sum of $ 6500, from which the defendant has appealed.

The negligence pleaded was that defendant failed to drive his automobile in a careful and prudent manner, failed to exercise the highest degree of care, failed to maintain a vigilant watch for automobiles on the highway, negligently drove his automobile at a high and dangerous rate of speed, negligently drove on the wrong side of the road, suddenly drove to the right side of the road "and did negligently drive behind the automobile in which the plaintiff was riding and against the same."

The answer was a general denial and plea of contributory negligence.

Plaintiff and Russell Shaw, on the night of January 12, 1932, were riding in an automobile which the latter operated in a southwestern direction upon Highway No. 6 near Edinburg, Missouri. The automobile was upon its proper side of the pavement and was operated in a careful and prudent manner. The occupants of the automobile could not see through its windshield because fog covered it and enveloped the highway. Plaintiff opened the door on his side and looked ahead to protect the driver from driving off the pavement. The defendant at the same time also drove an automobile upon said highway, overtook the automobile in which plaintiff was riding, struck the back end of it and caused it to leave the pavement, run down an embankment, resulting in severe injuries to plaintiff.

The defendant assigns error to the action of the court in permitting respondent to amend his petition during the course of the trial and in refusing defendant's application for continuance.

An expert witness testifying for plaintiff said that plaintiff was suffering from injury of the right sacroiliac articulation. The court struck the answer of the witness upon the ground that the petition did not allege the injury mentioned by the witness. Thereupon plaintiff obtained leave to amend his petition by inserting the following: "And an injury to the sacroiliac connections of the pelvic articulations." The defendant filed application for continuance and affidavit of surprise. The application was overruled and the trial proceeded. The application and affidavit recited that the defendant was unprepared to defend against the injury stated in the amendment.

The petition upon which the case went to trial alleged that "the plaintiff's right shoulder, shoulder blade and right arm were injured and the use thereof seriously impaired, and the plaintiff received an injury to his spinal column, and the spinal column of the plaintiff was wrenched, twisted, and thrown out of alignment."

The plaintiff contends that the amendment was unnecessary; that the allegation that plaintiff's spinal column was wrenched, twisted and thrown out of alignment was equivalent to an allegation of injury to the sacroiliac connections of the pelvis.

An expert medical witness testified as follows:

"Those two articulate with what we call the sacrum. That's a continuation of the spine (indicating). That part is the sacrum (indicating). The hip bone here and one here (indicating), and the spine down in between them. This joint here (indicating) is a joint that normally doesn't move, and this X-ray shows a little widening of the joint on the right side and normal on the left side. The articulation is normal here (indicating), and the anterior part here is normal. That bone (indicating) is a continuation of the spine on down, and that comes on down here (indicating), and the hip articulates in the bone on either side and then they join right here (indicating)."

In the case of Bales v. K. C. Pub. Serv. Co., 40 S.W.2d 665, 669, the court held that an allegation in the plaintiff's petition that "her back, spine and spinal column were bruised, contused, wrenched, sprained and twisted" was sufficiently comprehensive to allow the admission of expert evidence to the effect that the plaintiff sustained an injury "to the sacrum and the sacroiliac joint."

The evidence of injury to the sacroiliac connection was admissible though the petition had not been amended.

But there is another reason supporting the action of the court in overruling the application for continuance. The amendment was made on March 3, 1932. Plaintiff thereafter, on the same day, produced and examined four witnesses and defendant offered one witness in his behalf. Whereupon, the court adjourned until March 4, at which time the defendant introduced an expert medical witness who testified that at the instance of the former he examined plaintiff on May 11 and May 18, 1932; that he made an X-ray picture of plaintiff's sacroiliac articulation and reported his findings to defendant's counsel.

"Q. And you examined and investigated expressly to find out whether there was an injury to the sacroiliac articulation? A. Yes, sir, I did."

It is apparent the evidence disproved the statements in the application for continuance. There was no error in denying continuance. [Bales case, supra.]

The defendant contends that plaintiff's instruction No. 2 was misleading and confusing to the jury, permitted a verdict upon general negligence, although the petition was based upon specific negligence, permitted a verdict for the plaintiff for failure to reduce speed and keep the vehicle as far to the right as possible when rounding curves, which was not pleaded, advised the jury that defendant's driving upon the lefthand side of the highway was negligence, as a matter of law, assumed that there was no conflict in the record with reference to the manner in which plaintiff was injured. We do not find that the instruction was misleading, nor has the defendant called attention to a misleading sentence or paragraph. The instruction was in the conjunctive, did not authorize a verdict for the plaintiff unless the jury found that he was not guilty of contributory negligence; that defendant was guilty of the several acts of negligence pleaded and that such negligence on the part of defendant was the cause of plaintiff's injuries. The instruction was not erroneous. [Lauck v. Reis, 310 Mo. 184, 274 S.W. 827; Wentz v. Railroad, 259 Mo. 450, 476; Cool v. Petersen, 189 Mo.App. 717, 175 S.W. 244.]

The contention that there was a conflict in the evidence in respect to the charge of negligence is not supported by the record.

The defendant testified in part as follows:

"Q. Now, just tell the jury, you give your version of it. How did this wreck happen? A. Well, as I went around this curve, as I said, this fog was so dense in places--when I came to this...