Nickelson v. Cowan

• Decision Date: 17 September 1928
• Docket Number: No. 4411.,4411.
• Citation: 9 S.W.2d 534
• Parties: NICKELSON v. COWAN.
• Court: Missouri Court of Appeals

9 S.W.2d 534

NICKELSON v. COWAN.

No. 4411.

Springfield Court of Appeals. Missouri.

September 17, 1928.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Action by Louisa Nickelson against R. D. J. Cowan. Judgment for plaintiff, and defendant appeals. Affirmed.

Ward & Reeves, of Caruthersville, for appellant.

L. R. Jones and John M. Dalton, both of Kennett, and Abington & Abington, of Poplar Bluff, for respondent.

BRADLEY, J.

Plaintiff sued to recover for the alleged negligent killing of her husband. The cause was filed in Dunklin county. The venue was changed to Butler county, where plaintiff recovered, and defendant appealed.

Four grounds of negligence are alleged: (1) That defendant negligently permitted Mrs. Wadsworth, an alleged inexperienced driver, to operate the automobile at the time; (2) that defendant and Mrs. Wadsworth negligently failed to keep a vigilant watch; (3) that they negligently failed to give a warning of the approach of the automobile; and (4) the humanitarian doctrine. The answer is a general denial, a plea that deceased suddenly stepped from a place of safety to a place of danger, and a specific plea of contributory negligence. The record does not show that a reply was filed, but no point is made on failure to reply.

The cause went to the jury on the second, third, and fourth grounds of negligence as above stated, and on the question of contributory negligence as a defense to the second and third grounds.

Error is assigned (1) on the refusal of a general, and special demurrers at the close of plaintiff's case and at the close of the whole case; (2) on instructions given and refused; and (3) on the admission and exclusion of evidence.

March 8, 1925, plaintiff's husband, George Nickelson, was struck and killed by an automobile driven by Mrs. J. D. Wadsworth. Defendant was the owner of the automobile, an Overland sedan, and was sitting in the front seat with Mrs. Wadsworth, who was driving on a demonstration trip or drive with the view of purchasing. Mrs. Wadsworth's husband was in the rear seat at the time of the casualty, about 5 o'clock p. m. Mrs. Wadsworth was driving north on the public road from Hollywood in Dunklin county. At the same time, deceased, his son, and another were in a path just east of the roadway, walking north. One-half mile north of Hollywood the road upon which the automobile was being driven and upon which deceased was walking joined an east and west road and there terminated. Near the junction of the north and south road with the east and west road the north and south road divided into two roadways, one turning to the east and one to the west. Deceased was struck on the east turn of the north and south road. Deceased and those with him contemplated crossing the east and west road and then go on north on a pathway through a field. Deceased was not large of stature, was about 80 years old, and was somewhat stooped or humpshouldered.

Tom Nickelson, son of deceased, testified: That he, his father, and John Jones were walking in a path a few feet east of the roadway. That he and Jones were in front and deceased 3 or 4 feet in the rear. That his (witness') hearing was good, but that he heard no signal or warning given of the approach of the automobile. That he did not know of the approach of the automobile until he got "right there" where the north and south road joins the east and west road. That he then looked and the automobile was 15 or 20 feet away. That when he looked back and saw the automobile he got out of the road "on the other side," and when he "jumped across," he turned around, threw up his hands, and "hollered, Lookout!" That deceased had made about one step in the road when struck. That there was a culvert on the east and west road, east of, but near, the junction of the two roads, and that deceased was something like 8 or 9 feet from the culvert when struck, and that when the automobile stopped it was 8 or 9 feet east of the culvert with the left front wheel on the breast of the deceased. Witness further testified that the north and south road was a smooth, level, dirt road, just an ordinary dirt road in a level country, and had been a public road, within his memory, for 15 or 20 years.

On cross-examination witness Tom Nickelson testified: That, at the time, he and John Jones were "kindly side by side." That they were going "to cross the curve" and then go up through the field in the path. That his father, the deceased, was 2 or 3 feet behind him. That before he attempted to cross he looked and saw the automobile. That "it did did not honk there." That deceased was not facing the automobile when he (witness) "hollered, Lookout!" that deceased was not then looking at the automobile. "It wasn't the left fender that hit my father; from the way it looked to me it was up about the side of the radiator where it hit first." That the left front wheel was on deceased when the automobile stopped. That deceased's head was north and his body was across the left rut.

John Jones, who was with deceased at the time, testified that he and Tom Nickelson were walking along in front of deceased some 5 or 6 feet; that when they reached the east turn of the north and south road and started to cross he glanced back and saw the automobile 15 or 20 feet away and "jumped out of the road"; that his hearing was good, but that he did not "hear any horn honk"; that he did not see the automobile strike deceased; that when he jumped out of the way and then turned, the automobile was dragging deceased; that the automobile went about 33 feet from the place where he jumped out of the road before it stopped, and that when the automobile stopped the body of deceased was under the left front wheel; that the left front wheel was on deceased's breast.

On cross-examination Jones testified: That he and Tom Nickelson were walking side by side when they reached the east turn or curve and that deceased was 3 or 4 feet behind them. That when they started to cross (the east turn) he looked back and saw the automobile. That he did not know what part of the automobile first hit deceased. That he (witness) said, "Lookout!" That he did not know what effect it had on deceased "when both of us boys yelled out there." That near the junction of the two roads the north and south road divides, one side turning to the east and the other to the west. That at that time "there were traveled ruts showing where the cars went." That in between the two turns on the north and south road "there was a sort of three-cornered high place," and that "we men were crossing over" to the high place. That a culvert about 10 feet wide was near the bend. That deceased was about 8 or 9 feet from the culvert when struck. That he knew where he (witness) went across the road and using that place as a starting point he helped to measure the distance "that night."

Plaintiff introduced other evidence tending to show that the automobile was new and in good condition as to brakes and horn and that it approached the deceased running 10 or 15 miles an hour.

Defendant's evidence was in substance as follows: J. D. Wadsworth, husband of Mrs. Wadsworth, who was driving, testified that he was in the rear seat and that he watched the speedometer and that the automobile was running 5 miles per hour and that at one time it got up to 6; that he saw three men headed along north; that they looked back two or three times "before we got to them"; that the road they were driving on joined the east and west road. This witness described the junction about the same as did plaintiff's witnesses whose evidence is set out supra. Witness further testified: That his wife honked the horn twice when in about 80 or 90 feet of the three men. That when the horn was honked "the men looked over their shoulders like that" (indicating). That the two men and the deceased had already crossed the road before "the fellow threw up his hands and hollered. I am sure of that; they were all in the clear. All of them had crossed the road before the car got to them." That the deceased was 4, 5, or 6 feet behind the others, and that "one hollered; maybe both." That deceased had his back to the automobile and was across the road and in the clear, and that when one or both of the others "hollered" and threw up their hands, deceased stepped back in front of the automobile; that it looked like "he just fell back."

Defendant testified that when the automobile neared the east and west road the men were along on the side of the road and that "as we got near them" he asked Mrs. Wadsworth which way she was going to turn, but that she did not answer; that "she turned to the right when these men crossed the road"; that he did not know whether Mrs. Wadsworth sounded the horn; that deceased had crossed and was in the clear and then the young man threw up his hands and "hollered, Lookout!" and thereupon the deceased jumped back "in front of the car." Defendant further testified that nothing could have prevented the automobile striking deceased after he jumped back in front of it; that he did not look at the speedometer, but that the automobile was going very slowly; that he estimated that it was going 5, 6, or 7 miles an hour; that the automobile stopped in about 8 feet after deceased was struck and that the wheel was not on deceased, but was up against his body.

Deceased when extricated was able, with assistance, to walk to the automobile that struck him and was driven about 6½ miles to a physician, but died shortly after arriving. Tom Grooms, a deputy sheriff and constable, shortly after deceased died, drove this automobile from Senath, where deceased was taken for medical aid, back to Hollywood, and as a witness for plaintiff testified that on the roadway where the casualty occurred the automobile, in its then condition, could be stopped with safety to its occupants in 5 feet when going 5 miles an hour;...