Loughlin v. Marr-Bridger Grocer Co.

• Decision Date: 20 July 1928
• Docket Number: No. 4362.,4362.
• Citation: 10 S.W.2d 75
• Parties: LOUGHLIN v. MARR-BRIDGER GROCER CO.
• Court: Missouri Court of Appeals

10 S.W.2d 75

LOUGHLIN v. MARR-BRIDGER GROCER CO.

No. 4362.

Springfield Court of Appeals. Missouri.

July 20, 1928.

Rehearing Denied. October 26, 1928.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by Mary M. Loughlin against the Marr-Bridger Grocer Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Haywood Scott, of Joplin, for appellant.

J. D. Harris, of Carthage, and Grover C. James and J. D. James, both of Joplin, for respondent.

BAILEY, J.

This is an action by the widow of W. F. Loughlin, deceased, to recover damages on account of the death of her husband, alleged to have resulted from his being struck by one of defendant's trucks in the evening of November 8, 1926, on Main street in the city of Joplin. Trial was to a jury, and resulted in a verdict and judgment for plaintiff in the sum of $5,500, from which judgment defendant has appealed.

Referring first to the pleadings, the petition states, in substance, that on November 8, 1926, one of defendant's trucks, driven by an agent and employee of defendant, engaged in defendant's business, at or near the intersection of Main and Thirteenth streets, in the city of Joplin, struck W. F. Loughlin, plaintiff's husband, who was a pedestrian then attempting to cross Main street, knocking him down with great force, and causing him to suffer severe and fatal injuries of which he died on November 27, 1926. It is further alleged that the place where deceased was struck and injured was in the "congested district" of the city, and that by Ordinance No. 8472 of the city of Joplin it was unlawful for any person to drive a motor vehicle in said district in excess of 20 miles per hour; that said ordinance required the driver of motor vehicles to warn pedestrians of the approach of such vehicles by sounding a horn or whistle; that, on said day and at the time, a mist of rain was falling, obscuring vision; that the pavement at said place was slick and dangerous, requiring unusual care and caution on the part of drivers of motor vehicles in order to avoid striking pedestrians; that at said time and place large numbers of vehicles and pedestrians were using said Main street, and it was the duty of the driver of a motor vehicle to exercise the highest degree of care to avoid striking or injuring pedestrians, and to keep a constant lookout for users of the highway, and to keep such motor vehicle under control and capable of being stopped instantly. Negligence is charged in the violation of the speed ordinance and in failure to sound a warning by horn or whistle. It is also charged that:

"The driver of said vehicle, disregarding the bad weather conditions then existing and the danger of driving at a rapid rate of speed on the slippery and wet pavement, failed to exercise the highest degree of care in the operation of said motor vehicle and to keep same under control so that the said vehicle could be stopped immediately or the speed slackened or the course thereof turned so as to avoid striking the said deceased, when in the exercise of such highest degree of care said driver could have avoided striking said deceased; that the said driver disregarded the road, weather and congested traffic conditions existing at said place and thereabouts and drove said automobile at such rate of speed as was dangerous under such conditions then existing.

"Plaintiff further states that at said time and place the driver of defendant's said motor vehicle, acting in defendant's behalf and in carrying on defendant's business, as aforesaid, was negligent and careless in that he saw, or by the highest degree of care on his part could have seen, the said deceased in time to have stopped said vehicle or to have turned the course thereof and avoided striking and injuring said deceased." (Italics ours.)

The answer admitted the place of the accident was in the so-called "congested district," and that the ordinances pleaded, regulating the speed and signals required of the operators of motor vehicles, was in full force and effect, but denied each and every other allegation. This is followed by a plea of contributory negligence on the part of plaintiff's deceased husband and a further detailed statement of the manner in which the accident occurred, charging that deceased either slipped and fell or was struck by the right rear part of said motortruck as a result of his own negligent conduct. It is further charged that W. F. Loughlin fully recovered from the injuries he received in said automobile accident, and that the death was not caused by the injuries which he then received.

This amended answer was filed on June 21, 1927. On the same day a reply was filed which failed to deny all the material allegations of new matter contained in the amended answer. On the same day a motion for judgment on the pleadings was filed by defendant, upon which the court refused, at the time, to rule, although requested by defendant to do so. On the 23d day of June this reply was withdrawn, by leave of court, and an amended reply was filed, consisting of a general denial of the allegations in the amended answer, and thereupon the motion for judgment on the pleadings was overruled, to which defendant duly excepted. The trial then proceeded without objection.

Under assignment XXXVIII defendant assigns error in failure of the trial court to rule on its motion for judgment on the pleadings. The trial court has some discretion as to the time when it will rule on motions. It was not required to rule on the very day the motion was filed. Two days later the court permitted the reply to be withdrawn and an amended reply filed. The statute permits this to be done, and no error was thereby committed. Section 1280, R. S. Mo. 1919.

Under assignment XIX, error is assigned in permitting plaintiff to amend her petition after both sides had rested. The amendment was made by interlineation, and the words interlined are shown in italics in the quotation from the petition heretofore set out. This amendment raised no new issue, but simply caused the petition to conform to the evidence. Defendant was not injured thereby, and the court had authority to permit the amendment. Section 1274, R. S. Mo. 1919. This power is discretionary, and will not be interfered with on appeal unless abused. Kregain v. Blake, 292 Mo. 498, 239 S. W. 495. Moreover, the evidence upon which the amendment was based came from defendant's own witness, without objection. Under such circumstances, even though the petition had not been amended below, if leave had been asked to amend on appeal, this court would have been required to have treated the petition as so amended. Solomon v. Power Co., 303 Mo. 622, 262 S. W. 367. We find no error in that respect.

Error is assigned in the refusing of defendant's instruction in the nature of a demurrer to the evidence at the close of plaintiff's case. Defendant, of course, waived this point by introducing evidence in its own behalf. At the close of the whole case, defendant asked and the court refused a similar instruction in the nature of a demurrer to the evidence. Upon the refusal of this general instruction, defendant offered further instructions submitting the various issues raised by the pleadings and evidence, including, we think, the last chance or humanitarian theory. Under the ruling of our Supreme Court in Torrance v. Pryor, 210 S. W. 430, it would seem defendant is not now in a position to question the sufficiency of the evidence to make the humanitarian theory a question for the jury. However, since the point is not raised in respondent's briefs, we shall proceed with a consideration of the evidence.

It is well understood that plaintiff is entitled to the full benefit of all the evidence in the case, including that of defendant, and that every reasonable inference from the facts in evidence must be drawn in her favor. Stauffer v. Metropolitan St. Ry. Co., 243 Mo. 305, 147 S. W. 1032; Vitale v. Wells (Mo. App.) 285 S. W. 522. The evidence is uncontradicted that the accident occurred a short distance north of the intersection of Main and Thirteenth streets in the city of Joplin. It is a place much used for travel by both vehicles and pedestrians. Main street, according to the plat on file and accepted as correct, is 60 feet in width from curb to curb; double street car tracks run parallel on Main street, one on either side of the center of the street, with a space of about 7 feet between the two tracks; the east rail of the east track is 21.55 feet from the east curb; it is about 14 feet from the east rail of the east track to the center of the west track. Thirteenth street runs due east and west, and is 33.5 feet in width from curb to curb. On the northwest corner of the intersection of these two streets is located a bakery, the entrance to which facing on Main street is about 18.6 feet from the north curb line of Thirteenth street. The bakery building is 25 feet in width, and just north of it is a grocery store of the same width. On the northeast corner of the intersection is located a filling station facing in a southwesterly direction, with a driveway running diagonally from the north side of Thirteenth street to the east side of Main street. It is about 27 feet from the north curb of Thirteenth street to the south side of the driveway where it enters Main street and the driveway itself is approximately 27 feet in width. Just north of the filling station is a feed store, having a double glass door on the south side thereof some distance east of Main street.

At the time of the accident, which occurred about 5:30 in the evening of November 8, 1926, it was dark and misting rain, necessitating the use of headlights on motorcars being operated on the street. The pavement was slick. None of plaintiff's witnesses, and in fact no witness, actually saw plaintiff's deceased husband struck by defendant's truck. No witness testified definitely as to the rate of speed of the truck...