McCoy v. Home Oil & Gas Co.

• Decision Date: 01 May 1933
• Docket Number: No. 17732.,17732.
• Court: Missouri Court of Appeals
• Parties: McCOY v. HOME OIL & GAS CO.

60 S.W.2d 715

McCOY v. HOME OIL & GAS CO.

No. 17732.

Kansas City Court of Appeals. Missouri.

May 1, 1933.

Rehearing Denied May 22, 1933.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be published in State Reports."

Action by Richard McCoy, by his next friend, Stella Slater, against the Home Oil & Gas Company. Judgment for plaintiff, and defendant appeals.

Reversed.

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

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

TRIMBLE, Judge.

This case is here on the second appeal. The first is reported in 48 S.W.(2d) 113, where a judgment for plaintiff was reversed, but a majority of the court ordered the case remanded for another trial so that plaintiff "may, if he can, show the true facts." That new trial has been had, resulting this time in a verdict for plaintiff in the sum of $2,500 (instead of the former $3,750), from which defendant has again appealed.

As stated in the former opinion, it is a suit to recover alleged damages caused by the colliding of plaintiff's bicycle with the front wheel of defendant's oil truck driven by an employee, whereby plaintiff was thrown over the hood, not striking it or the truck, but landing on the concrete pavement whereby he was injured.

The amended petition, on which the case was tried this time, stated that plaintiff was riding a bicycle north on Twenty-Second street, traveling on the east side thereof, and defendant was also operating a truck north along said Twenty-Second street and negligently operated it so as to cause plaintiff's bicycle to collide with said truck and injure him.

The petition then alleged that said collision was caused by the following acts of negligence: (1) That defendant's truck was negligently driven from private property between street intersections onto said public highway, and plaintiff was traveling, at said time, on said highway and between said intersections, and said truck negligently entered said highway at said time and place from plaintiff's left and to the rear of plaintiff; (2) that defendant negligently refused to give plaintiff at that time the right of way, but negligently drove said truck in the center of said highway; and (3) negligently turned from said center to the right and across plaintiff's lane of travel at the north intersection, at a time when plaintiff was on the right-hand side of said highway and in close proximity to the rear of said truck.

"That all of said negligent acts caused plaintiff to be in a place of danger and imminent peril; that said negligent acts of refusing to give plaintiff the right-of-way and driving onto said highway from private property to the rear of plaintiff for the purpose of cutting across plaintiff's lane of travel from said center of said highway at the next intersection, created a place of danger and imminent peril for plaintiff; that defendant knew that said acts would create a place of danger and imminent peril for plaintiff, or should have known, by the exercise of the highest degree of care, in time to have avoided said collision by not turning said truck to the right and across plaintiff's lane of travel and by not refusing to give plaintiff the right-of-way, as aforesaid, but negligently failed to do so. (All italics those of the author hereof.)

"Plaintiff states that he was, at all times, in the exercise of due care.

"Plaintiff further states that by reason of all of said negligent acts, hereinbefore stated, he has received the following injuries, to wit:" (Here they were described.)

The answer was a general denial with this additional matter: "Further answering, defendant states that defendant's driver was driving defendant's truck north on 22nd Street, on the east side of 22nd Street, and that on reaching Penn Street, the truck was turned to the east on the south side of Penn Street; that as said truck was about to turn into Penn Street, it was run into by the 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; that whatever injuries, if any, plaintiff received at the time and place complained of arose out of or were directly contributed to by plaintiff's negligence as above set forth."

Plaintiff testified to the following: The collision with its consequent injury occurred soon after 7:30 on the morning of July 6, 1930, shortly after plaintiff had finished his delivery of newspapers and was on his way home riding his bicycle north on Twenty-Second street.

Mitchell avenue, running east and west, intersects Twenty-Second street, and defendant's Home Oil Station is on the northwest corner of Twenty-Second and Mitchell back from the street "a little ways," with a double driveway about 20 feet wide, beginning about 20 feet north of Mitchell avenue. Two pumps are between the two driveways which run in a northeasterly direction. North of Mitchell avenue, Twenty-Second street slopes down-hill. Plaintiff, on his bicycle, was going north on Twenty-Second street. He says he saw the Home Oil truck moving slowly out of the north driveway of the station approximately 40 feet north of Mitchell avenue.

Direct examination of plaintiff by his counsel, Mr. Shultz:

"Q. Where were you with reference to 22nd Street when you first saw the truck? A. Opposite it on the side of the street—22nd Street.

"Q. East or west? A. East.

"Q. Where were you with reference to the center of 22nd—east or west? A. I was on the east.

"Q. When did you next see the truck? A. I saw it about the middle of the block. * * *

"Q. Where was the truck on 22nd Street when you saw it the second time? A. The middle of the block.

"Q. Where was it with reference to the center of the street? A. Middle of the street.

"Q. Where were you when you saw the truck the second time? A. About the middle of the block.

"Q. Where did the truck go after you saw it in the middle of the street, about the middle of the block? A. Continued going down as far as Penn in the middle of the street. * * *

"Q. After you saw the truck the second time, state where you were traveling with reference to the truck. A. A few feet behind it.

"Just go on and tell what happened. A. Well, I was, I think, a few feet behind, close to the curb. As I went on down 22nd Street to the corner, the truck was going in the middle of the street. It swung past in front of me, giving no signal, and no direction he was turning, and caught me between the curb and the front wheel and threw me over the radiator onto the street.

"Q. Where with reference to the southeast corner of 22nd and Penn did the collision occur? Just tell the jury where the collision occurred in the street? What part of the street? A. On the corner out in the middle of the street, close to—

"Q. (Interrupting) What? A. In the middle of Penn where I was hit.

"Q. Was that where you were hit? A. Yes, sir.

"Q. Out in the middle of the street? A. No, more close to the curb.

"Q. Do you know about how near the curb the collision was? A. No, I don't remember.

"Q. You don't remember? A. No, sir.

"Q. Just before the collision, where were you traveling with reference to the curb—the east curb? A. A foot or a foot and a half from the curbing. * * *

"Q. Did you remain on your bicycle? A. No, I didn't. * * *

"Q. Do you know whether or not you hit the truck—your body hit the truck? A. I don't know whether it did or not.

"Q. Do you know whether you fell off on the ground or not? A. I hit on the pavement, I know.

"Q. Do you know where you went after you left the bicycle? A. Yes, I know I went over the radiator—hood of the truck—the motor. * * *

"Q. Do you know about what part of the street you were thrown in—fell in? A. Close to the curbing on the north curbing. Closer there than anywhere else. Close to the curbing on the side.

"Q. Towards the north curbing of 22nd and Penn? A. Yes, sir. * * *"

(Previously to this, the court had sustained objections to leading questions asked plaintiff as to whether the truck passed him on the way north up Twenty-Second street before Penn intersection was reached. A reading of the decision on the former appeal, 48 S.W. (2d) 113, will disclose that this question was thought to be an important one, bearing not only on whether defendant's truck driver could be regarded as negligent in turning into Penn street in the pathway of plaintiff's bicycle, but also on whether plaintiff himself could be charged with contributory negligence in attempting to pass the truck on the right-hand side. As the author of the main opinion on the first appeal read the record in that case, the plaintiff's evidence clearly showed that the truck did not pass him as they went north on Twenty-Second street, and as the whole evidence surrounding the accident had been thoroughly adduced, he, as such former author, was of the opinion that the case should be reversed outright; but a majority of the court thought the case should be remanded for another trial, and it was so ordered.) Consequently, in the second trial from which this appeal comes, it was considered an all-important, indeed a vital, matter for plaintiff to show, this time, that the truck did so pass the bicycle.

At the point in the second trial indicated by the testimony last above quoted, plaintiff's counsel again began taking plaintiff over the same question of whether the truck passed the bicycle or whether at the time the truck entered Twenty-Second street on its northern journey the truck was north or south of the bicycle. To this the defendant's counsel objected as leading, as an attempt to get plaintiff to change his testimony, etc. The court ruled that the questions were "somewhat...