Noah v. L. B. Price Mercantile Co.

• Decision Date: 23 May 1921
• Docket Number: No. 14001.,14001.
• Citation: 231 S.W. 300,208 Mo. App. 149
• Parties: NOAH v. L. B. PRICE MERCANTILE CO.
• Court: Missouri Court of Appeals

231 S.W. 300

208 Mo. App. 149

NOAH v. L. B. PRICE MERCANTILE CO.

No. 14001.

Kansas City Court of Appeals. Missouri.

May 23, 1921.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by E. W. Noah against the L. B. ?rice Mercantile Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial.

Ball & Ryland, of Kansas City, for appellant.

Samuel E. Swiggett, Rollin E. Talbert, and Rosenberger & Reed, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, claiming to have been injured through being run over by a wagon negligently driven by defendant's servant while in the prosecution of the master's business, brought suit to recover damages therefor. In his first action he suffered a nonsuit, and thereafter he brought this action, recovering therein a verdict and judgment for $6,000, from which the defendant has appealed.

Defendant is in the business of selling merchandise at retail throughout Kansas City, and perhaps adjacent towns, by means of solicitors who canvass from house to house working under foremen who are in charge of a group of solicitors. Each of these foremen is furnished with a wagon and horse by which the goods to be sold are hauled by the foreman to the locality intended to be canvassed, and there the goods are distributed to the solicitors of that group, who thereupon proceed to canvass that locality, make sales, and account to the foreman therefor.

Defendant kept its horses at a livery barn in Kansas City. It was a two-story structure 70 feet wide north and south, and 50 feet deep east and west, and faced west on an alley 15 feet wide running north and south. The barn office, 12 feet square, was in the northwest corner of the barn, and the north side of the barn entrance, 12 feet wide, was 7 feet south of the south side of the barn office. A driveway 12 feet wide ran from the entrance east apparently the full depth of the barn. This driveway had no partitions marking its boundaries, they being merely imaginary lines, and the driveway was therefore merely a 12-foot space used in driving vehicles into the barn.

Customarily, a number of chairs stood in the 7-foot space between the driveway and the office, and here those about the barn were accustomed to sit when not engaged in their work.

Plaintiff was one of defendant's solicitors who worked under a foreman named Woods. As he was on a commission, he worked when he chose, and on the day of the alleged injury he was not working, but had come to the barn to tell his foreman that he had been absent on account of his brother's death. It was while seated in one of the chairs in the 7-foot space above referred to, waiting to see his foreman, that plaintiff claims to have received the alleged injury some time about noon of August 5, 1916.

Plaintiff's evidence as to the occurrence of the injury consisted of his testimony and that of a man by the name of McBreen, a saloon keeper; and, according to their evidence, the facts are as follows:

Plaintiff was seated about halfway between the office and the driveway at a point nearly opposite, but perhaps slightly east of, the door in the south side of the office, not far from the southeast corner thereof, He had been sitting there about 15 minutes, with his back to the north and his face to the south, talking to a negro who was sitting in a chair a foot and a half or two feet west of him, when McBreen, in a single buggy with an attractive horse, drove into the barn and east along the driveway until the rear of his buggy was from 12 to 16 feet east of the entrance. McBreen got out of the buggy and began unhitching the horse from the south side thereof. Plaintiff, attracted by the horse, sat with his face to the southeast looking at him. While in this position, Himan, a foreman of defendant, and in charge of one of its wagons, drove rapidly into the barn and driveway but, instead of keeping the horse and wagon confined thereto, they were allowed to veer out of the driveway to the north until they struck and ran over plaintiff, and then the horse and vehicle curved back southeast into the driveway again, striking the buggy standing there, and at this point the horse was caught by Roll, the proprietor of the stable, who was helping McBreen unhitch. As the horse and wagon made this curved course out of the driveway the wagon struck the negro and plaintiff, turning them in their chairs over on the cement floor, the negro falling upon plaintiff, and the left wheel of the wagon passing over plaintiff's leg, injuring his shin, and bruising him in various places about the body.

Plaintiff says he did not see the horse and wagon enter the barn, as his attention was fixed on the McBreen horse. He says the first thing he knew he was knocked over, the negro was thrown on top of him, and he was run over. He says he saw the wheel as it ran over his leg and the horse was going at that time "pretty fast," and that the horse and wagon continued on for 15 or 16 fret past him.

Plaintiff's evidence as to the entrance of the wagon into the barn and what occurred just before and at the moment plaintiff was struck was given by McBreen. He testified that his buggy had been driven along the driveway until its rear end was 14 or 15 feet east of the entrance; that his own horse was about 20 feet east of the entrance and about 5 feet south of the center of the driveway, and his buggy was south of the center of the driveway; that he was standing on the south side of his horse, helping to unhitch it, and was about 18 to 20 feet east of the entrance, when Himan drove in "awfully fast, because I heard a noise, and I just happened to look around, and saw the horse coming in pretty fast." "It looked as though he was coming in at a trot." McBreen also said that as the horse came in the driver was not guiding him aright; the horse's head was turned to the north over toward the office instead of straight east along the driveway; that he heard "some of the boys" holler, and he looked around, and plaintiff and the negro were knocked over by the wagon, the chairs were upset, the two men were on the floor, and they and the chairs were all "mixed up there and scrambled"; that the horse after passing plaintiff, continued east and south until he reached a point near the south side of the driveway close to his buggy, where it stopped, the end of a shaft knocking a piece of the rubber out of the tire on the hind wheel of witness' buggy.

McBreen further testified that he heard the holler and looked around before the accident, and saw what occurred; that, judging from the way the horse entered the barn, Himan must have driven up the alley from the south; that the hollering began before the horse came into the barn, and when he looked around the horse and vehicle were coming into the barn faster than they ought and completely out of their direction; that part of the horse was in the barn and the wagon was still in the alley when he looked around; that he saw the wagon come in the door and saw it strike the negro and plaintiff; that while his horse was between him and them he could easily see over the horse, and when he heard the racket he quit unhitching and looked around; that as he drove into the barn himself he had no difficulty whatever in going along the driveway past the plaintiff and the negro sitting where they were, and that he noticed plaintiff sitting there as he drove in. He denied positively having testified on the formal trial that he did not see the wagon hit plaintiff or anybody and did not know anything about it until after the alleged occurrence.

There was also evidence on the part of both plaintiff and McBreen that Himan, upon reaching the point in the alley where he turned to come into the barn, had a clear view of, and could easily have seen, plaintiff where he sat for a distance of 35 or 40 feet before reaching him, and that he could easily have stopped the horse in 5 or 6 feet. Plaintiff denied that he was intoxicated at the time, and McBreen says he saw nothing to indicate that he was.

These two witnesses, plaintiff and McBreen, were all that testified for the plaintiff concerning the matters surrounding the infliction of the injury, and, after a medical witness had testified as to the nature and extent of the injuries, plaintiff rested.

Thereupon defendant presented an application for a continuance based on surprise at McBreen's testimony at the present trial and the change therein from what it was at the first trial and in his deposition taken before that. The plaintiff waived the necessity of reducing the application to writing, and also the making of the affidavit thereto, and upon said waiver the application was made orally. Inasmuch as it will be better to here set forth defendant's evidence and contention as to what happened at the barn, in contrast to what plaintiff contends happened, we will not go further into the application at this time except to say that, upon plaintiff's objection that McBreen's testimony at this trial was substantially the same as before, and that defendant had shown no diligence, the court overruled the application for continuance, the defendant excepting.

Upon the commencement of defendant's testimony, the plaintiff for the first time asked to have the witnesses put under the rule, and, over the objections of defendant, this was done.

Thereupon Himan testified that he, in company with Klein on the seat beside him, drove the horse into the barn in a walk; that one cannot see into the interior of the barn till he gets in the doorway; that he saw plaintiff seated in a chair a few feet directly east of the door on the north side of the door line, sitting right close up to the north line of the driveway; that he stopped in the entrance until the rig ahead of him could get out of the way and Klein spoke to plaintiff, and then witness drove on in going east along the driveway and not getting over the north line thereof; that...