McCoy v. Home Oil & Gas Co.

• Decision Date: 11 January 1932
• Docket Number: No. 17304.,17304.
• Citation: 48 S.W.2d 113
• Court: Missouri Court of Appeals
• Parties: McCOY v. HOME OIL & GAS CO.

48 S.W.2d 113

McCOY v. HOME OIL & GAS CO.

No. 17304.

Kansas City Court of Appeals. Missouri.

January 11, 1932.

Rehearing Denied February 1, 1932.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Suit by Richard McCoy, by his next friend, Stella Slater, against the Home Oil & Gas Company. Judgment in favor of the plaintiff, and the defendant appeals.

Reversed, and cause remanded for a new trial.

Stringfellow & Garvey, of St. Joseph, for appellant.

Shultz & Owen, of St. Joseph, for respondent.

TRIMBLE, P. J.

Suit of a minor, by next friend, to recover damages sustained in a collision of his bicycle, with defendant's oil truck driven by an employee in the conduct of its business. Verdict and judgment for $3,750 went in plaintiff's favor, and defendant duly appealed.

The petition, after setting forth that on June 6, 1930, plaintiff was riding his bicycle north on Twenty-Second street in St. Joseph, Mo., and traveling on the east side of said street, and that, "about the intersection of said street and Penn street," defendant was operating a truck along and over said Twenty-Second street, and "negligently operated the same so as to cause the plaintiff's bicycle, on which he was riding, to collide with said truck, and injured him."

After thus charging defendant with having injured plaintiff through negligence stated in general terms, the petition went on to further charge that "defendant and its agent saw, or, by the exercise of the highest degree of care could have seen plaintiff in a place of danger and imminent peril, in time, by the exercise of the highest degree of care, to have avoided injuring him, and negligently failed to do so."

The answer was a general denial coupled with a plea of contributory negligence. In making this plea, the answer set up that defendant's truck was going north along the east side of Twenty-Second street, and on reaching Penn street the truck was turned to the east to go along the south side of Penn street, and as it was "about to turn into Penn street" the truck was "run into by plaintiff and his bicycle; that plaintiff was proceeding north on 22nd street, on his bicycle, on the east side thereof, and instead of attempting to pass said truck on the west side thereof, carelessly and negligently attempted to pass said truck on the east side thereof, and as said truck began to make its turn to the east, plaintiff carelessly and negligently ran his said bicycle into the right side of said truck," so that whatever injury he received arose out of, and was contributed to by plaintiff's own negligence.

Taking the two hereinabove quoted allegations of the petition as constituting first a charge of general negligence followed by a charge of specific negligence in the violation of what is known as the "humanitarian rule," the result is that the case is confined to, and must be submitted upon, the specific charge. In other words, the case, as pleaded, is bottomed solely upon negligence in the violation of the humanitarian rule; and the question is, What do the facts show in this regard?

A careful study of the record discloses them to be as follows:

Plaintiff, 16 years of age at the time of the injury, had just finished his morning newspaper delivery of the Kansas City Times, and had started for his home about 7:30. He was on his bicycle going north on Twenty-Second street and was carrying nothing except his "paper sack" with one newspaper in it. He was about a foot or a foot-and-a-half from the curb on the east side of the street. He had come three blocks from his last delivery, on his way home, and had been on Twenty-Second street about two blocks before reaching Mitchell avenue, which intersected Twenty-Second street. He said he was traveling 15 miles per hour. When he was about the middle of the block and south of the intersection of Mitchell avenue, he saw defendant's truck coming out of an oil station at the corner of Twenty-Second and Mitchell on the west side of Twenty-Second street. I do not mean to say that plaintiff, in so many words, said he was about the middle of the block and south of the intersection of Mitchell avenue when he first saw the truck coming out of the oil station. This is, as stated above, what "a careful study of the record discloses" to be the fact in that regard. True, in testifying as to the situation, he first said he was north of the intersection of Mitchell avenue and Twenty-Second street. But later he testified differently. Here is the record on this point. The first time he spoke of it was when in direct examination by his counsel:

"Q. When you first saw it (the truck) did it come out of that station? A. Yes, sir.

"Q. Came from the west side of 22nd street? A. Yes, sir.

"Q. What direction was it going? A. North.

"Q. Where were you in reference to the intersection of Mitchell Avenue and 22nd street when the truck drove out? A. Halfway of the block.

"Q. North of the intersection of 22nd street and Mitchell Avenue? A. Yes, sir.

"Q. What is the next street north of Mitchell Avenue? A. Penn.

"Q. As I understand, at the time the truck came out of the station there at 22nd street and Mitchell Avenue you were north of that point half a block? A. Yes, sir.

"Q. When the truck came out from the west side of 22nd street, were you south of the truck or north of the truck? A. I was south of the truck — back of it.

"Q. When you first saw the truck it came out of where? A. Come out from the east side of the filing station and started in front of me.

"Q. From the east side of the oil station? A. Yes, sir.

"Q. That is on the east side of 22nd street? A. West side of 22nd street.

"Q. Where were you in 22nd street at the time you saw the truck come out into 22nd street? A. About a foot from the curb. * * *

"Q. When the truck drove out from the station what direction did it go? A. Went north on 22nd.

"Q. About what part of the street was it traveling in? A. Middle part of the street.

"Q. What direction were you taking at that time? A. Along there?

"Q. About a foot from the curb you said, going north? A. Yes, sir.

"Q. You continued on north how far? A. To the corner of Penn.

"Q. How were you traveling in that block with reference to the curbing — how near to the curbing on the east side of the street as you traveled that block? A. About a foot or a foot-and-a-half average all the way.

"Q. Did the truck continue ahead of you all the time — did it remain ahead of you, or did you go ahead of it? A. It went ahead of me."

It will be observed that, in his first answer, the place of his location when he saw the truck come out of the oil station, as being north of the intersection, was contained in his counsel's question, and plaintiff's answer was merely, "Yes, sir." But when he was asked where he was when the truck came out of the west side, was he south or north of the truck, he unequivocally said, "I was south of it." Now, he unquestionably testified elsewhere that the filling or oil station was on the corner of Mitchell and Twenty-Second street, but that the entrance out of which the truck came was 40 or 50 feet north of the corner of these streets and on the west side of Twenty-Second. So that, if he were in the middle of the block north of the Mitchell street intersection when he first saw the truck come out of the oil station, he must necessarily have been north of the truck, and the truck must have passed him before reaching the intersection at Penn street, and yet he clearly and unequivocally says he was south of the truck when it came out and started north in front of him; that he continued on north to the corner of Penn; that all that time the truck continued ahead of him; and that, instead of his going north ahead of it, the truck went ahead of him. He never said anywhere in the record that the truck passed him, and not a living soul says that it did. It is inconceivable that all evidence of that fact, if it did occur, would have been omitted. So that, if plaintiff was in the middle of any block at the time he first saw the truck come out of the oil station, it was in the middle of the block south of the Mitchell street intersection. It is not a vital matter in the case one way or another, whether plaintiff was precisely in the middle of the block or not, but it is of the utmost importance that the truck never passed plaintiff, but was at all times ahead of plaintiff till the Penn corner was reached.

The truck came out of the oil station and went north along Twenty-Second street, going "fast." It was in the "middle part of the street." Plaintiff continued north along Twenty-Second street at a distance of a foot or a foot and a half "on an average" from the east curb of Twenty-Second street. The two, the truck and the bicycle, continued north along Twenty-Second street, the truck in front or ahead of plaintiff, until the corner of Penn street was reached. Plaintiff says: "I was going about 15 miles an hour and it (the truck) was going 18 or 20; when he (the truck driver) got to the corner he gave no signal of turning and of course I was going the usual rate of speed and I hit his truck, front wheel, and I went over the hood into the street."

Plaintiff further said that, when the truck driver turned east, "I was about a foot from the front end of it" (the truck); that he (plaintiff) did not know the driver was going to turn east; that plaintiff's wheel hit the front wheel of the truck; his body did not hit the truck; the truck did not strike him, but he went over the hood and hit the pavement. He said he knew the time when the truck stopped with reference to the time his wheel struck the truck, and that the truck "stopped in an instant." "Q. Stopped right there? A. Yes, sir." He also said that Twenty-Second street sloped to the north, and "I was going down hill."

On cross-examination, plaintiff said: "It was on level ground where I hit the car; sloping in the middle of the block." "Q. You had been coming one block on...