Miller v. Rollins

• Decision Date: 01 March 1937
• Docket Number: No. 5745.,No. 5744.,5744.,5745.
• Citation: 102 S.W.2d 686
• Parties: MILLER v. ROLLINS et al.
• Court: Missouri Court of Appeals

102 S.W.2d 686

MILLER v. ROLLINS et al.

No. 5744.

No. 5745.

Springfield Court of Appeals. Missouri.

March 1, 1937.

Appeal from Circuit Court, Maries County; Nike G. Sevier, Judge.

"Not to be published in State Reports."

Suit by Myrtle C. Miller against Sam T. Rollins and others. From judgment in favor of the plaintiff as against all the defendants, the defendants appeal.

Reversed and remanded.

T. A. Shockley, of Waynesville, for appellant Rollins.

Mann, Mann & Miller, of Springfield, and W. H. Holmes, of Vienna, for appellants Schuttler and Neidert.

Breuer & Northern and E. W. Allison, all of Rolla, and J. D. Gustin, of Springfield, for respondent.

SMITH, Judge.

As may be seen by the above heading, there are two appeals in this case. The defendants were all sued jointly, but the defendants filed separate answers, and the defendants had separate theories of defense, and their defenses are different here, but the cases were tried together before the circuit court, and the appeals were presented together to this court, and we shall undertake to dispose of the issues in one opinion.

This cause was instituted in the circuit court of Pulaski county, returnable to the September term, 1934, thereof; the suit having been filed May 18, 1934.

Thereafter and at the September term, 1934, of the circuit court of Pulaski county, the cause was transferred on the application for change of venue of the defendant C. C. Schuttler to the circuit court of Maries county.

The cause was continued from term to term to the September term, 1935, of the circuit court, Maries county, at which term and on the 24th day of September, 1935, the cause went to trial, resulting in the plaintiff obtaining a verdict against all the defendants in the sum of $5,000, upon which judgment was rendered accordingly.

The plaintiff in her petition alleges the location of United States Highway No. 66 and that it runs east and west through the town of Cuba, Mo., and that said highway is intersected in said town of Cuba by State Highway No. 19, which runs in a northern direction and intersects Highway 66 at nearly right angles at and within the corporate limits and thickly settled section of the town of Cuba. The petition then continues as follows:

"Plaintiff further says that the said intersection is marked at proper distances on each of said public highways with printed or painted notices and warning signs, so located at such conspicuous points adjacent to said roadways as to command the notice and attention of travelers and drivers and operators of motor vehicles thereon. That to a driver or operator of a passenger automobile approaching said intersection on said Highway 66 from the west, the said intersection is visible for a distance of not less than three hundred feet to the westward thereof, and that to a driver or operator of a motor vehicle or passenger automobile approaching said intersection on said Highway 19 from the southerly side of said Highway 66, the presence of a vehicle approaching the same on said Highway 66 from the west is clearly visible for not less than said 300 feet.

"For cause of action plaintiff states that on the fourth day of April 1934, at the special instance, invitation, and request of the defendant, Sam T. Rollins, she took passage in an automobile owned, operated and driven by and under the exclusive operation and control of said defendant from the said Town of Waynesville to the City of St. Louis, whereby it became and was the duty of said defendant Rollins to so drive, operate and control said automobile as to deliver plaintiff safely at her said destination and to use and exercise all the highest degree of care and caution in the operation and driving and control of said automobile so as to avoid injury and danger to the plaintiff, and particularly to maintain a vigilant watch for other vehicles entering upon said highway from either side thereof and to keep said automobile under control when approaching cross roads and intersections, so as to be able to avoid collision or violent contact with other vehicles or objects entering upon or crossing said Highway 66 from either side thereof.

"Plaintiff further says that it was the duty of each driver or operator of a motor vehicle or automobile on said highway No. 19 in approaching the said intersection above described, with intent to enter upon or cross over said Highway 66, to stop such automobile on said Highway 19, at such distance from said intersection as to avoid interference with or danger to traffic or travelers on said Highway 66, and to ascertain before entering thereon or passing thereover, or so attempting to do, that said Highway 66 was clear of approaching vehicles and travelers and to use the highest degree of care and caution to avoid injury and danger, or the appearance or threat of injury or danger to vehicles or persons so traveling on or passing over said highway.

"Plaintiff further says that on said fourth day of April, 1934, while defendant Rollins was traveling upon said Highway 66 and transporting plaintiff in said automobile as aforesaid, and when he was driving the same toward and approaching said intersection, the defendant, C. C. Schuttler, by his agent, servant and chauffeur, the defendant, Herman Neidert, negligently, recklessly and carelessly operated and drove another automobile, the property of the defendant, C. C. Schuttler and then and there being operated and driven under his supervision and control, upon said Highway 66 from the south side thereof and from said Highway 19, in front of and in such proximity to the said automobile in which plaintiff was a passenger as to cause a collision or violent contact of said automobiles against each other and caused the machine in which plaintiff was riding to be thrown upon and against the buildings and other structures adjacent to said intersection, whereby plaintiff was thrown with great force and violence against the roof, back and sides and other wooden and metal parts of said automobile.

"Plaintiff further charges that defendant, Sam T. Rollins, in so operating said automobile in which plaintiff was a passenger, failed to use and exercise the highest degree of care and caution to avoid injury to plaintiff and to transport plaintiff safely to her destination, and failed to maintain vigilant watch for intersections to said highway, and failed to keep said automobile under control in approaching said intersection, but operated and drove said automobile at a high and excessive rate of speed so that when the automobile of the defendant Schuttler entered upon said Highway 66, defendant Rollins was unable to stop and control his said automobile in time to avoid said collision.

"Plaintiff further says that defendant Schuttler and his said servant Neidert, carelessly, negligently and recklessly failed to observe the warning signs and signals upon and along said highway and failed to stop the said Schuttler's machine at said intersection before entering upon said Highway 66, and carelessly, negligently and recklessly failed to ascertain that said highway was clear of traffic and travelers before going thereon, but on the contrary, negligently, carelessly, and recklessly drove and operated the said automobile so as to bring the same upon said highway immediately in front of the automobile in which plaintiff was a passenger, when they knew, or by the exercise of the highest degree of care could have known, of the presence of said approaching automobile being driven by defendant Rollins, and observed and calculated the distance of the same from the said intersection and the rate of speed at which the same was traveling.

"Plaintiff says that by reason of the negligent and careless acts of the defendants, and by reason of said contact and collision of said automobiles she was bruised and shaken and suffered contusions upon her head, arms, and body, her left collar bone was fractured, and she suffered dislocations, strains, and sprains of her pelvic bones and organs, and severe strains, sprains and dislocations of the bones, nerves, muscles, tendons and ligaments of her back, hips, chest, arms and hands, whereby she has been confined to her bed for more than seven weeks and has suffered and will continue to suffer great pain, sickness and weakness, has been put to great expense for hospital fees, nursing and medical treatment, and will continue to incur such expenses for an indefinite time in the future, and has been so disabled as to prevent her from pursuing any employment or performing any work, and that such physical injuries and the nervous shock, pain, sickness and weakness, resulting therefrom will result in her partial or total permanent disability for the performance of any useful service.

"Wherefore plaintiff says she has been damaged by reason of the careless, reckless and negligent acts of defendants as aforesaid in the sum of seven thousand, five hundred dollars, for which she asks judgment with her costs."

The separate amended answer of Sam T. Rollins admitted that the plaintiff was riding as a guest in his car, and denied generally all the allegations of the petition so far as the same pertains to him, and his answer continued as follows:

"Further answering plaintiff's petition the defendant, Sam T. Rollins, states that he was driving and operating his said automobile on the 4th day of April, 1934, upon U. S. Highway No. 66, through the City of Cuba, Missouri, in a careful and prudent manner and that he was at the time exercising the highest degree of care for the safety of persons and property upon said highway and the guests in his car, and was driving said automobile at a moderate rate of speed, not to exceed 35 to 40 miles per hour, that when the said automobile of defendant, Sam T. Rollins, was within 100 to 125 feet of the intersection of State Highway No. 19 with U. S. Highway No. 66, the defendants C. C. Schuttler and Herman Neidert, carelessly and...