Nixon v. Hill

• Decision Date: 15 June 1932
• Docket Number: No. 5094.,5094.
• Citation: 52 S.W.2d 208
• Parties: NIXON v. HILL.
• Court: Missouri Court of Appeals

52 S.W.2d 208

NIXON v. HILL.

No. 5094.

Springfield Court of Appeals. Missouri.

June 15, 1932.

Rehearing Denied July 22, 1932.

Appeal from Circuit Court, Christian County; Robert L. Gideon, Judge.

Action by Mrs. Jean Nixon against Charles R. Hill. From a judgment for plaintiff, defendant appeals.

Affirmed.

Barbour & McDavid and F. W. Barrett, all of Springfield, for appellant.

Mann, Mann & Miller, of Springfield, for respondent.

SMITH, J.

This is an action for damages growing out of an automobile collision on what is known as highway No. 65, in Stone county, Mo. The cause was filed in Greene county, but upon change of venue was tried in the circuit court of Christian county.

The petition alleges two assignments of negligence on the part of the defendant, namely, that the defendant was operating his car at an excessive rate of speed, and that he was operating it upon the wrong side of the highway. The case was tried under both allegations of negligence, and so submitted to the jury, which resulted in a verdict for the plaintiff in the sum of $3,750.

The trial court sustained the contention of defendant that the verdict of the jury was excessive, and overruled the motion for new trial on condition that the plaintiff would enter a remittitur of $750, which was accordingly done, and judgment was entered in the sum of $3,000, and the defendant appealed.

There is no complaint made here as to the pleadings. The defendant in his answer filed a counterclaim for damages claiming that the collision was occasioned by the negligence of the plaintiff. The additional abstract of the record filed by the plaintiff, shows that the counterclaim had been dismissed by the defendant.

The case is here on several assignments of error, which we shall consider in the order submitted, and we shall consider the facts that we deem necessary under the various assignments.

The defendant states his first assignment of error as follows: "The Court erred in giving Instruction No. 1 and 2 on behalf of the plaintiff and in refusing to give Instruction No. 1-F offered by the defendant. This because Instructions No. 1 and 2 submit the assignment of negligence to the effect that the defendant was driving his car at an excessive rate of speed when there was no evidence tending to prove such assignment, and since there was no such evidence it follows that defendant's Instruction 1-F withdrawing that assignment from the case should have been given."

Instruction No. 1-F is as follows: "The court instructs the jury that there is no evidence in the case that the defendant was driving his car at an excessive rate of speed and that assignment of negligence is withdrawn from your consideration."

The contention of the defendant is, and the testimony seems to show that no one in the car in which plaintiff was riding saw the defendant's car approaching until it was about four to six feet from the car in which plaintiff was riding, and defendant contends that it was physically impossible for any one to tell the speed of a car in such short distance and under such circumstances as here shown.

The testimony is uncontradicted that the plaintiff was riding in the rear seat of her husband's new Chevrolet car, riding beside her husband, and that the car was being driven by a man by the name of Waldo Mays, and that Miss Helen Corbett was riding on the front seat by the side of Mays. The plaintiff was riding in a northerly direction, and the defendant, with his wife riding beside him, was driving a Nash car south upon said highway. For several miles at and near where the collision occurred the highway was a gravel road and was being repaired, and was dry and very dusty. The testimony shows that road workers had before this collision dragged dirt and gravel and some rock of the size of eight inches and under to the right-hand side of the road going north. This row of rock and gravel was near the east side of the roadbed, and was from a foot to a foot and one-half high and from one and one-half to six feet wide at different places along the highway, and that the roadbed was twenty-four or twenty-five feet wide from shoulder to shoulder, and, since this row was on the east side of the road, that left a space from eighteen feet to twenty feet wide on the west side of this row which was being used for travel by vehicles going north and south.

The road was straight for some distance south of and for three hundred feet north of the place of the collision. The straightness of this road at this place is not denied, and that is material in view of what we shall say later.

The evidence on the part of the plaintiff shows that the plaintiff was riding just west of and about a foot from the edge of this row of gravel; that about three hundred feet north of the place of the collision there was a curve in the road, and, as the plaintiff was riding north, a large truck was seen coming around this curve, and the dust on the highway was two or three inches deep, and this truck was seen approaching all the way from the curve, by the occupants of the car in which plaintiff was riding, and at no time was the defendant's car in front of the truck after it turned the curve. The truck was traveling at a rapid rate of speed, approximately forty-five miles per hour, and was stirring up a very thick cloud of dust, so much so that it was impossible to see through. The plaintiff's witnesses testified positively that the truck could be seen by them from the curve and that the defendant was not in front of the truck at any point after the truck reached the curve and made the turn coming towards them, and that the dust was so thick that none of them saw defendant's car until a very short time after the truck had met the car in which plaintiff was riding.

Waldo Mays said he saw the truck pass, and that the cloud of dust raised by it was very bad, and that just after the truck passed, while he was slowing down his car on account of the dust, he saw defendant's car coming head on towards him at thirty or thirty-five miles per hour, and that on account of the thickness of the dust he could not see it until it was about four feet from the car he was driving.

The testimony was preponderant that the car in which plaintiff was riding was about a foot from the gravel row, and that the defendant's car when it struck the other car was a foot or two further west; that is, that it lacked just a foot or so of striking the Chevrolet car squarely head on. Other occupants in the Chevrolet car saw the approaching car just before the collision. The testimony was that the two cars were jammed together, and that the radiator of the Chevrolet was driven back into the motor, and that the front part was badly damaged, and that the windshield and steering wheel were broken.

We think it was not error to refuse defendant's requested instruction 1-F because Waldo Mays' testimony was competent to go to the jury for whatever it was worth on the question of the speed of the approaching car. Tutie v. Kennedy (Mo. App.) 272 S. W. 117, 121. We think also that the testimony that the occupants could see the approaching truck for three hundred feet as it approached after it turned the curve in the road, and that the truck was traveling in that three hundred feet at forty or forty-five miles per hour, and that the Nash sedan struck the Chevrolet just within a second or so after the truck passed is a circumstance that the sedan was being driven at least practically as fast as the truck, and was being driven at least behind the truck, and, under the circumstances of the very bad condition of the dust, testified to by both parties, it was sufficient to justify the refusal of defendant's instruction and to justify the giving of plaintiff's instruction as to the rate of speed. What is an excessive rate of speed depends to a large extent upon the condition of the highway and the surrounding circumstances. Ginter v. O'Donoghue (Mo. App.) 179 S. W. 732, 734; Haake v. Davis, 166 Mo. App. 249, 148 S. W. 450.

It must be remembered, too, that there were two acts of negligence pleaded, and the plaintiff's instruction submitted the two acts of negligence conjunctively; that is, the jury was instructed that, if it found the defendant was negligently driving at an excessive rate of speed and if it found that said collision occurred east of the center of said highway and on defendant's left-hand side thereof, then the verdict should be for the plaintiff. The testimony is amply sufficient to submit to the jury the question of the collision occurring on defendant's left-hand side of the highway. So, where two acts of negligence were submitted in the conjunctive, and there was evidence to support one, even if the evidence was insufficient to warrant the submission of the other, it cannot be held prejudicial to the right of the defendant to so submit the issues, because the plaintiff was assuming an unnecessary burden in presenting them conjunctively. Webster v. International Shoe Co. (Mo. App.) 18 S.W.(2d) 131, 133, and cases cited.

The second assignment of error relied upon here submitted by the defendant is as follows:

"The court erred in permitting the attorney for the plaintiff to improperly inject into the case throughout the trial the question of the defendant's being insured, as follows:

"1. In the examination of the panel as to their qualifications the plaintiff, over the objections of defendant, was permitted to ask the jurors whether or not any of them were members of the Union Automobile Indemnity Association, or were interested therein, or whether any juror held a policy in that company, when prior to that time the plaintiff had been furnished an affidavit made by an officer of that company showing the relation, if any, of each juror to that insurance company, and, therefore, the questions so asked were not in good faith. Also, because the attorney for the plaintiff was permitted to repeat the inquiry in different...