Myers v. Kennedy

• Decision Date: 18 December 1924
• Docket Number: No. 22705.,22705.
• Citation: 267 S.W. 810
• Parties: MYERS v. KENNEDY.
• Court: Missouri Supreme Court

267 S.W. 810

MYERS v. KENNEDY.

No. 22705.

Supreme Court of Missouri, in Banc.

December 18, 1924.

Rehearing Denied December 30, 1924.

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

Action by Irene Myers against Thomas Kennedy. Judgment for plaintiff, and defendant appeals. Affirmed.

Culver Phillip & Voorhees, of St. Joseph, for appellant.

W. B. Norris and Barney E. Reilly, both of St. Joseph, for respondent.

JAMES T. BLAIR, J.

This is an action for damages for the death of Virgil Myers, who died of injuries inflicted when appellant's automobile was struck by a street car and thrown against Myers so that his leg was crushed against the running board of another automobile beside which he was standing in St. Joseph street. There was a verdict for $4,000, and this appeal followed. The presence of a constitutional question gives this court jurisdiction. The evidence shows that Virgil Myers Was standing with one foot on the ground and the other on the running board of his brother's automobile which was parked on the east side of Fifth street in St. Joseph, and was facing north. This vehicle was near the east curb, and was so placed that its right front wheel was close to the curb and its right rear wheel was a foot or two farther out. The space between it and the car track was too narrow for the passage of another automobile if, at the time, a street car should happen to come upon the track at the point even with the parked car. Appellant had turned north into Fifth street at Edmond, and had proceeded north to a point about even with or a couple of feet in advance of the machine beside which Myers was standing when the collision occurred. Appellant's automobile was struck by the street car on its left side and crowded over against the parked car, and Myers' leg was caught and crushed between the bwo automobiles. On several points the testimony is quite conflicting. There was testimony from which the jury' could have found that appellant stopped his automobile behind and near that beside which Myers was standing, got out, and examined his tires, and then drove around the Myers car. There was testimony justifying a finding that appellant did not stop at all. The evidence would support a finding that as the street car came down Fifth street it was moving 5 to 8 miles per hour, and had drawn near the Myers car when, too late to stop the street car, appellant drove out from behind the Myers car and attempted to pass between its front and the street car, and was struck. There is much conflict concerning the distance between the approaching street car and the Myers automobile when appellant drove past the latter. Appellant testified, in substance, that he stopped behind and near the Myers automobile, got out and looked at his tires, and then backed up and drove around the rear of the Myers machine and up beside it or a couple of feet farther, and at that point discovered automobiles parked ahead of the Myers machine on the same side of the street, so that he could not get by before the street car reached them; that he stopped; that the street car was then a short distance south of Felix street, the next street on the north; this distance was over one hundred feet; that he saw the motorman was not looking toward him; that he (appellant) gave no warning or signal to Myers or any one; that he sat there and made no effort to move; that he thought, every minute, the motorman would see him; the motorman did not see him, and the collision occurred. The motorman testified he saw appellant from the time he turned into Fifth street. Some of his testimony and that of others tends to prove appellant suddenly drove into the space too late for the collision to be averted by stopping the street car. There was evidence that the motorman could or ought to have seen appellant's car and Myers in their dangerous positions in time to have stopped.

The petition alleges:

"Plaintiff further states that at said time the automobile driven by said Kennedy turned into Fifth street and was traveling on the east side of said Fifth street, and approached the stationary automobile at, and upon which said Virgil Myers was standing in said Fifth street, and that the defendant, Kennedy, negligently drove his automobile upon and on and near the said street car tracks and into the space hereintofore mentioned, and in such manner that he, the said Kennedy, placed himself and his said automobile in a dangerous and perilous position of a collision between his automobile and said street car, and that at said time said Kennedy saw or by the exercise of ordinary care on his part could have seen that a street car was approaching him and his said automobile upon said street car tracks, and that at said time, by reason of the said position of said Kennedy and his automobile, there would likely be a collision between his said automobile and said street car, and that at said time said Kennedy knew or by the exercise of ordinary care on his part could have known that in case of said collision said Virgil Myers was in great danger and imminent peril of being injured thereby.

"Plaintiff further states that the defendant, Kennedy, in negligently driving his said automobile as aforesaid into the space aforesaid, and while said street car was approaching said automobile, negligently stopped said automobile so near to the stationary automobile at which said Virgil Myers was standing and said street car tracks that, by reason thereof and because of the said position of said automobile in said space said street car came violently in contact with said defendant's automobile, and that by reason thereof said street car collided with defendant's automobile, and said defendant's automobile was thrown in and upon the said Virgil Myers,, and that the defendant negligently failed to give to the said Virgil Myers any warning of his perilous position so brought about by the negligence of the defendant as aforesaid, and that by the exercise of ordinary care on the part of the defendant, defendant could have given such warning, and thereby saved the life of the said Virgil Myers."

Respondent instituted an action against the street car company. This was subsequently dismissed pursuant to an agreement which, omitting formal parts, reads:

"That, whereas there is now pending in the circuit court of Buchanan county, Mo., the case of `Irene Myers, Plaintiff, v. St. Joseph Railway, Light, Heat & Power Company and Thomas Kennedy, Defendants,' in which said suit Irene Myers is seeking to obtain damages from both of the defendants by reason of their negligence for the death of her husband, Virgil Myers, which occurred on the 9th day of June, 1919. Now, therefore, it is hereby stipulated and agreed between the parties to this contract that for and in consideration of the sum of six thousand ($6,000.00) dollars to her paid, the receipt of which is hereby acknowledged, she, the said Irene Myers, agrees that so far as the St. Joseph Railway, Light, Heat & Power Company, one of the defendants in said cause, is concerned, she will not further prosecute said suit against the said St. Joseph Railway, Light, Heat & Power Company, and that said case now pending shall be dismissed as to the said St. Joseph Railway, Light, Heat & Power Company, and that she will not in the future institute any other proceedings against the St. Joseph Railway, Light, Heat & Power Company on account of the death of her said husband, and that she hereby covenants that she will not molest and harass in any way, or in the future will she sue, the said St. Joseph Railway, Light, Heat & Power Company for or on account of a cause of action for the death of her said husband, and that this covenant not to sue the St. Joseph Railway, Light, Heat & Power Company at any time in the future can be plead as a defense only by the said St. Joseph Railway, Light, Heat & Power Company to any proceedings that might be brought, instituted, or taken by or in behalf of herself if any such suit should be instituted in the future, it being expressly understood and agreed between the parties hereto that she will not further prosecute her cause of action against the said St. Joseph Railway, Light, Heat & Power Company, but at the same time it is expressly agreed that this contract shall not prejudice or affect her right to institute and maintain a suit against the said Thomas Kennedy for the death of her said husband and that her right to further prosecute said cause of action against said Thomas Kenedy shall remain as though this agreement had not been entered into, but she covenants with the St. Joseph Railway, Light, Heat & Power Company not to further prosecute any cause of action she now has or may hereafter have against the St. Joseph Railway, Light, Heat & Power Company for the death of her said husband."

Thereafter this action was begun and prosecuted with the result already indicated. Other details of the facts may appear in another connection. An opinion in this case was written in division. Some time thereafter the case went to court en banc. After reargument the divisional opinion was not adopted, and, subsequently, the case was reassigned.

Appellant insists: (1) Sections 4217 and 4218, R. S. 1919, in so far as they purport to apply to automobiles, are unconstitutional, in that they deny appellant the equal protection of the law; (2) the court should have instructed the jury to find for appellant because (a) respondent pursued one of two separate remedies to a settlement, and (b) there was no substantial evidence tending to prove the negligence charged; (3) there was error in giving respondent's instructions 1 and 5.

I. Appellant's first contention is that section 4218, R. S. 1919, under which this action was brought, is unconstitutional as applied to death resulting from the negligent operation of an automobile. It is argued that section 4217 purports to apply to various vehicles, and includes...