McCollum v. Shubert
| Citation | 185 S.W.2d 48 |
| Decision Date | 04 December 1944 |
| Docket Number | 20342 |
| Parties | McCULLUM v. SHUBERT |
| Court | Kansas Court of Appeals |
Murrell & Murrell, of Kirksville, and Waldo Edwards and D. L Dempsey, both of Macon, for appellant.
Thompson & Osborne, of Kansas City, and E. M. Jayne, of Kirksville for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 5000. Plaintiff remitted $ 1250 of the judgment, and defendant has appealed.
The facts show that plaintiff, a 7 year old boy, while standing upon a wooden bridge in the City of Salisbury, on the 1st day of June 1941, was injured by being struck by an automobile being driven by the defendant. The bridge was a part of Weber Street in said city and extends north and south. It spans the Wabash Railroad tracks. It is built of wood with a level portion in the center with inclines on the north and south ends. There is a railing on the north and south sides of the bridge; also a rub rail about 8 inches high. According to evidence, introduced on behalf of plaintiff, he was standing a few inches from the west rub rail on the level part of the bridge, looking toward the west, apparently at an eastbound freight train, which was present and moving at the time. Smoke from the engine, as it passed under the bridge apparently got into his eyes and he made a turn, stepping back three or four feet toward the north and stood there facing in a northwest position with his hands before his eyes for three or four seconds, when he was struck by a southbound automobile being driven by the defendant.
According to testimony, introduced on behalf of plaintiff, when he assumed the position in which he stood when he was struck the automobile was from 60 to 75 feet north of him. There was testimony on behalf of plaintiff that the speed of the automobile, during this time, was from 25 to 30 miles per hour. At that speed it could have been stopped within 50 to 55 feet. All of the testimony, including that of defendant's was that no horn or signal was sounded by defendant prior to the collision.
According to evidence introduced by plaintiff, he was struck by the front end, or the front bumper, of the automobile, and thrown over the right front fender, his mouth and teeth coming in contact with a small parking light about the middle and on top of the right front fender.
According to defendant's evidence he saw plaintiff standing on the rub rail, facing the west, when his car was several hundred feet north of where he later struck plaintiff. Defendant passed over the north wooden incline of the bridge, driving on the right-hand and west side of the roadway and was about 47 feet 3 inches on to the north incline of the bridge and 10 feet from the level part when he passed a car going in the opposite direction. There was only a space of about 10 inches between the two cars and, as it passed, defendant took his eyes off of the plaintiff, his attention being centered upon the passing car. At that time he was driving at a speed of about 12 or 15 miles per hour. As soon as the cars passed defendant again looked west and saw plaintiff in the same position on the bridge. As defendant's car approached plaintiff, and when the front of his car was probably 3 feet and a half north of where plaintiff was standing, and when defendant's car was 3 feet and 8 or 10 inches from the banister, plaintiff turned to the right, or toward the north, and took two or three steps out on the bridge and collided with the right front fender of defendant's car. When plaintiff turned on the rub rail defendant applied his brakes and stopped his car as soon as possible.
There was ample evidence from which the jury could have found that defendant could have stopped his car in time to have avoided the collision with plaintiff. In fact, there is no contention made by defendant that the court committed any error in refusing to give his instruction in the nature of a demurrer to the evidence.
Defendant insists that plaintiff improperly disclosed to the jury the fact that defendant carried a policy of liability insurance in the State Farm Mutual Insurance Company of Bloomington, Illinois.
In reference to this point, the record shows that on voir dire examination of the jury panel, it was admitted by counsel for defendant, out of the presence of the panel, that the State Farm Mutual Insurance Company of Bloomington, Illinois, was the insurance carrier in the case. Thereupon, the panel was interrogated by counsel for plaintiff, who asked them if they were employees of, or, if they had been employed by said company, if they had any relatives connected, in any way with that company, and if any of them held a policy in the company. Five of the panel stated that they held such policies. Thereupon, counsel for plaintiff asked the panel: 'Now, you five men that indicated that you hold policies of insurance with that company, would the fact that you are interested and hold policies in that company affect you one way or another in the decision of a case in which you thought they were interested or might be interested'?
Defendant objected to this question and moved to discharge the jury.
Defendant insists that the question of insurance was improperly injected in the case during the examination of the panel by counsel for plaintiff. Undoubtedly, the examination was proper, up to the time counsel for plaintiff inquired as to whether the prospective jurymen would be affected if they thought that the company was interested or might be interested. Hatton v. Sidman, Mo.App., 169 S.W.2d 91; Craven v. Halpin-Boyle Constr. Co., Mo.App., 15 S.W.2d 853, 859; Maurizi v. Western Coal Mining Co., 321 Mo. 378, 11 S.W.2d 268.
It is quite apparent that, by the question last mentioned, the panel was substantially advised that the insurance company was interested in the case. However, we are of the opinion that plaintiff had the right to ask the question. It had been developed that 5 of the panel were policy holders in this mutual company. They were not only policy holders but were interested in the company (a mutual concern) as owners and substantially occupied the position of stockholders. Wendell v. City Ice Company of Kansas City, 224 Mo.App. 152, 22 S.W.2d 215, 220. In view of this fact, it was proper to ask them whether they could try the case fairly.
While plaintiff could have challenged, for cause, the five members of the panel, (Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023, 1025, 103 A.L.R. 505; Citizens Light, Heat & Power Co. v. Lee, 182 Ala. 561, 62 So. 199, 205; Wendell v. City Ice Co., supra, 224 Mo.App. 152, 22 S.W.2d 215, loc.cit. 220), there is no statute, or rule of law, requiring him to have done so. It, therefore, was entirely proper, and within his right, for plaintiff to ascertain whether these men could try the case fairly, notwithstanding their apparent interest in the result, with the view of leaving them, or any one of them, on the jury, if the inquiry resulted satisfactorily. Defendant insists that it was the duty of the court, of its own motion, to discharge the jury for cause, when their disqualification, on the grounds mentioned, first appeared; but no authority is cited by defendant to uphold such a contention, and we think there is no merit in it.
The amended petition, upon which the case was tried, places the plaintiff upon the edge of the bridge (the rub rail) and alleges that his head was turned and his gaze was away from the direction from which defendant's automobile was approaching, and that he was looking toward the train; that the train was making a noise and plaintiff's complete attention was upon it; that he was oblivious to the approach of the automobile and in danger of being struck by it while plaintiff was in such a position, and that he was in peril of being struck should be move or change his position; that defendant could have seen him, in a position of peril and could have seen that plaintiff was in peril of being struck should he move or change his position, and that he did make such a change in his position and was injured. Defendant insists that this charge is no more than one that plaintiff was on the edge of the bridge in a position of peril if he moved or changed his position.
At the conclusion of the evidence the court permitted plaintiff, over the objection of defendant, to amend his petition in order to conform with the proof as to allege that plaintiff was in a position of peril on the bridge, and that defendant saw, or by the exercise of the highest degree of care could have seen him in such position in time thereafter, with the means and instrumentalities at hand and with safety to himself and others, to have avoided injuring plaintiff. The court refused to allow plaintiff to make a similar amendment to his petition at the close of plaintiff's case.
It is insisted that the court erred in permitting this amendment; that the same constitutes a departure from the cause of action stated in the petition. Defendant claims that, if the amendment did not constitute a departure, it was, at least, a material variance and the case should have been continued on his motion. Defendant, in the trial court, filed an affidavit of surprise stating: 'That he is not prepared to meet the issue made by plaintiff's amendment to plaintiff's first amended petition because said amendment states facts entirely different to and contrary to those alleged in said first amended petition and requires investigation in order that this defendant may adequately meet and refute said charge'.
It is admitted that the petition, prior to the amendment and the trial, stated a cause of action. So, we are not called upon to decide...
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