Parkville Milling Co. v. Massman
| Decision Date | 03 June 1935 |
| Docket Number | 18038 |
| Citation | 83 S.W.2d 128 |
| Parties | PARKVILLE MILLING CO. v. MASSMAN. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.
Action by the Parkville Milling Company against Anna Massman, who filed a counterclaim. From a judgment for defendant on plaintiff’s action and for defendant on her counterclaim, plaintiff appeals.
Judgment for defendant on plaintiff’s action affirmed and judgment for defendant on her counterclaim reversed and remanded for new trial concerning defendant’s right to recover under humanitarian rule.
A.D Gresham, of Platte City, Shultz & Owen, of St. Joseph, and Walter J. Gresham, of Kansas City, for appellant.
James H. Hull, of Platte City and Mytton, Parkinson & Norris, of St. Joseph, for respondent.
The appellant, hereinafter designated as plaintiff, filed suit for damages against the respondent, hereinafter designated as defendant, in the circuit court of Platte county, Mo.
The case grew out of a collision between the truck of the plaintiff, appellant herein, and the motorcar of defendant, respondent, which she was driving, at the intersection of Second street and U.S. Highway No. 71, in Platte City, Mo.
The facts revealed by the record are as follows: U.S. Highway No. 71 extends through Platte City in an easterly and westerly direction. Second street in said city extends north and south, intersecting the highway, at right angles. The highway is three blocks south of the main business portion of Platte City. There is a sharp descent westwardly in the highway to Second street from a point several blocks west. Approaching the highway slightly downgrade from the north on Second street, as defendant was, the view westwardly is obstructed by a high bank until one is about 50 feet from the highway when the highway is visible for 200 feet. There is a "Stop" sign on the north side of the highway at Second street, about 35 feet back from the slab. From this point the highway is visible eastwardly more than 300 feet. Plaintiff’s truck, in charge of its driver, was descending the hill westwardly on the highway, approaching Second street, as defendant drove from the north on Second street toward the highway. She testified that she stopped when about 15 feet from the north side of the concrete slab, looked west, then south, then east, and saw the truck a block and a half east or approximately 450 feet away. She then started her car and proceeded onto the slab and had almost cleared the slab, having gone a distance estimated at 30 to 33 feet, when she looked the second time and discovered the truck 15 to 20 feet from her and appearing to try to pass to the left in front of her. She was then proceeding at 5 miles an hour and stopped within 3 feet; almost instantly, as she put it. The truck struck her left front fender, turning her car around, facing north, and the truck overturned and went into the ditch on the southwest corner of the intersection.
The allegations of plaintiff’s petition are that its driver was traveling westwardly on highway 71 at a rate of speed of approximately 20 miles an hour, sounding his horn repeatedly, that defendant, without stopping at the stop sign, or stopping to look and listen, and without exercising due care, negligently, carelessly, and wantonly drove her car onto the highway.
The answer set up several allegations of negligence of plaintiff’s driver, and an allegation under the "Last Clear Chance" rule, as well as a general denial, by way of defense.
By way of counterclaim, defendant charged primary negligence of the truck driver, in driving at excessive speed, failure to warn, overloaded truck, failure to keep a lookout, failure to keep car under control, and "last chance" in that the truck driver saw, or could have seen, defendant’s motor vehicle in position of imminent peril, as he approached Second street, in time to have avoided striking her car, by slowing down, stopping, or turning aside, which he negligently failed to do, in the exercise of the highest degree of care.
Trial was by jury and the jury found for the defendant in plaintiff’s action for damages and found for defendant on her counterclaim in the sum of $500. Judgment was entered in accordance with the verdict of the jury and the plaintiff has appealed.
The plaintiff in its brief, under assignment of errors, makes claim under eight general assignment of errors without specification of reasons therefor. The plaintiff follows with specifications under points and authorities as follows:
OPINIONAs to plaintiff’s point V, the same presents nothing for review, in that the evidence complained of is not sufficiently designated and no indication of where found in the record is pointed out.
Assignment of error as to rejection of evidence, which does not disclose what objections were made when the evidence was offered, is without merit. Blair v. Paterson, 131 Mo.App. 122, 110 S.W. 615.
Assignment of errors that do not point out the evidence objected to presents nothing for review. McGarry v. Missouri P. Ry. Co., 36 Mo.App. 340; Boggess v. Jordan (Mo. App.) 283 S.W. 57.
As to the plaintiff’s first assignment of error, we conclude, for reasons hereinafter more specifically stated, that the evidence presents an issue for the jury and that the question of whether or not plaintiff’s driver was negligent, under the evidence shown, presents a question for the jury, and therefore the submitting of the defendant’s counterclaim to the jury presents no error. State v. Haid, 333 Mo. 76, 62 S.W.2d 400, 403.
The plaintiff, under point II, claims error in defendant’s instruction C. Instruction C starts out by submitting the issue to prime negligence of plaintiff and closes by imperfectly submitting the last chance doctrine.
The instruction does not properly present the doctrine of the humanitarian rule in that the question of plaintiff’s seeing, or opportunity of seeing, defendant in a position of imminent peril, if so, in time to have, with the appliances at hand and with safety to self, avoided hitting her. The instruction presents reversible error.
Plaintiff’s point III is directed at defendant’s instruction D. This instruction submits the issue to the jury by permitting the jury to find for defendant on her counterclaim, provided they find plaintiff negligent and defendant exercising the highest degree of care. This instruction must be considered in connection with defendant’s testimony.
When upon the witness stand in her own behalf, the following questions were asked defendant and the following answers given, to wit:
"Q. Will you tell the jury just what happened as you saw it?
A. It was between the hour of 11 and 12 and I started home for mother’s home and I started down Second Street.
"Q. You were going south?
A. Yes, sir, I slowed down to within 15 or 18 feet of the pavement and I stopped, as I neared the crossing.
"Q. You stopped there?
A. Yes, sir.
"Q. The pavement is 18 feet wide, isn’t it?
A. Yes, sir.
"Q. So you were really down at the edge of the highway when you stopped weren’t you?
A. Yes, sir.
"Q. Now, when you stopped there, did you look at your left, or up towards the east?
A. I looked to my right, yes, sir, and then I looked up to the east.
"Q. How far could you see when you looked up east-how far up the highway could you see?
A. I could see up to the second filling station that was about the second block.
"Q. You mean that is as far up the highway as you could see when you looked to the left?
A. Around that turn I could see farther but that is as far as I could see to the bend. Of course, you could see above the bend.
"Q. When you looked to the left you could see where the highway winds away up around the hill?
A. Yes, sir.
"Q. What did you see when you looked to the left there?
A. I saw the truck.
"Q. About how far away was it?
A. About a block and a half, I should judge.
"Q. About how wide or about how long are those blocks there in Platte City?
A. About 300 feet.
"Q. So that the truck was around 450 feet away when you saw it?
A. Yes, sir.
"Q. How fast was it coming?
A. I could not judge the rate of speed.
"Q. Then what did you do?
A. I started up to go across.
"Q. How fast were you going when you started up, or when you were going across the highway?
A. Just starting.
"Q. About how many miles an hour would you say you were going as you came onto the highway?
A. I should judge in the neighborhood of five miles.
"Q. Five miles an hour?
A. Yes, sir.
"Q. Then what happened?
A. Well, I started across, looking towards the south and as I went almost off the pavement I looked up and saw this truck within just a very short distance of me, clear around...
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