Majors v. White

• Decision Date: 29 January 1923
• Docket Number: No. 14604.,14604.
• Citation: 247 S.W. 233
• Parties: MAJORS v. WHITE.
• Court: Missouri Court of Appeals

247 S.W. 233

MAJORS v. WHITE.

No. 14604.

Kansas City Court of Appeals. Missouri.

January 29, 1923.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge

"Not to be officially published."

Action by Clarence Majors against E. C. White. Judgment for plaintiff, and defendant appeals. Affirmed.

Bruce Barnett, of Kansas City, for appellant.

Scholer & Alford, and M. J. Kilroy, all of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries and to a motorcycle. There was a verdict and judgment in favor of plaintiff in the sum of $400; $200 of said sum being for damages to the motorcycle and $200 damages to plaintiff's person. Defendant has appealed.

The damages were caused by defendant's running his automobile into plaintiff's motorcycle, throwing plaintiff to the pavement to his injury. On behalf of plaintiff the court gave the following instruction:

"The court instructs the jury if you find and believe from the evidence that on April 16, 1920, about the hour of 3:30 in the afternoon, plaintiff was riding on a motorcycle in an easterly direction on Armour boulevard at or near its intersection with Walnut street in Kansas City, Mo., and that as he entered into the intersection of Armour boulevard and Walnut street defendant was driving in a westerly direction on Armour boulevard toward Walnut street and turned to the left into said Walnut street, and if you find as he made said turn he carelessly and negligently, if so, failed to give any signal or warning that he was about to make the turn, or that defendant carelessly and negligently, if so, ran upon and against plaintiff when in the exercise of ordinary care he saw or could have seen plaintiff in or approaching a position of peril from being struck by defendant's car in time to have avoided striking plaintiff by slowing or stopping or swerving his car (if you so find), or that defendant, when turning to the left to enter Walnut street, made such turn before he passed beyond the center of Walnut street, and that as a direct result of defendant's acts above set forth, or any one of them (if you find such act or acts were negligence), defendant collided with plaintiff and injured him or his said motorcycle, if so, then your verdict must be for the plaintiff and against the defendant, provided you further find that plaintiff at the time and place was in the exercise of ordinary care for his own safety."

Defendant complains of the giving of plaintiff's instruction No. 1 on a number of grounds; the first being that the instruction submits in the alternative three grounds of recovery, and there is no evidence that the failure of defendant to signal when he was about to turn into Walnut street had anything to do with the collision. In support of this contention it is argued that the evidence shows that when plaintiff first saw defendant's automobile it was 35 feet east of the east curb of Walnut street, going straight west, and that when plaintiff glanced at it again the automobile was coming right across the corner going southwest into Walnut street, and that if the signal had been given between the two times that plaintiff looked, it would have been of no value to plaintiff, as he would not have seen it; that he actually saw the automobile when it started to make the turn, so that a signal at that time would have been valueless; that if the signal had been given prior to defendant's reaching a point 35 feet from Walnut street, plaintiff would not have seen it for he was not looking.

The facts, taken in their most favorable light to plaintiff, show that on April 16, 1920, about 4 p. m. he was riding a motorcycle east at the rate of 15 miles per hour, about 8 feet from the south curb on Armour boulevard in Kansas City, Mo. Armour boulevard runs east and west, and Walnut street, an intersecting street, runs north and south. When plaintiff reached Walnut street he saw defendant about 35 feet west of the east curb line of Walnut street, approaching in an automobile on Armour boulevard. At that time defendant gave no sign that he intended to turn south into Walnut street. When plaintiff again glanced at the automobile, he saw it starting to make the turn, so he slowed up his motorcycle. At this time he was about the center of Walnut street. Plaintiff's witness Chapman testified that the automobile started to turn into Walnut street 35 or 40 feet from the east curb of the latter street. It is, therefore; apparent that between the time plaintiff first glanced and saw the automobile and the second time he saw it only an instant transpired. In other words, that defendant was about to make the turn at the time plaintiff first glanced at his automobile. This being true, defendant at that time should have been in the act of giving the signal. We think there is nothing in the contention.

The second complaint made against the instruction is that it submits that plaintiff might recover under the humanitarian doctrine, and that there is no evidence going to show in what distance defendant's car could have been stopped, and that defendant could have stopped in time by the exercise of ordinary care to have avoided the injury; that the only evidence as to the distance in which the car could have been stopped was that, if it were going at 20 miles per hour, it would have required 30 feet in which to stop it. While there was evidence on the part of plaintiff that the car was going as much as 25 miles per hour, there was other evidence that at the time defendant started to make the turn he was going 60 miles per hour and at the time of the collision 7 or 8 miles per hour. Plaintiff testified that when the automobile struck his motorcycle it knocked the motorcycle about 4 feet, and then dragged it 9 feet further before the automobile...