La Pierre v. Kinney

• Decision Date: 17 June 1929
• Citation: 19 S.W.2d 306,225 Mo.App. 199
• Parties: GERTRUDE LaPIERRE, RESPONDENT, v. G. T. KINNEY, DOING BUSINESS AS KINNEY COAL COMPANY, APPELLANT
• Court: Kansas Court of Appeals

19 S.W.2d 306

225 Mo.App. 199

GERTRUDE LaPIERRE, RESPONDENT, v. G. T. KINNEY, DOING BUSINESS AS KINNEY COAL COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

June 17, 1929

Appeal from the Circuit Court of Jackson County.--Hon. A. Stanford Lyon, Judge.

AFFIRMED (on condition).

Judgment reversed and remanded.

Bert S Kimbrall and Walter W. Calvin for appellant.

W. W McCanles for respondent.

LEE, C Barnett, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

LEE, C.

This is an appeal from a judgment for damages for personal injuries sustained by plaintiff in a collision between the automobile in which she was a passenger and a coal truck driven by an agent of defendant, in Kansas City, Missouri, on the afternoon of November 2, 1925.

Tracy Avenue, in said city, is about twenty-eight to thirty feet in width between curbs. It is paved with brick and is much used for hauling. There is a gradual ascent in the grade of the street south from 24th Street, which grade is steepest from 25th to 27th Streets.

Defendant is in the retail coal business in said city, under the name Kinney Coal Company. At about 4:15 P. M. on the day in question a delivery truck owned by defendant, loaded with coal from his yards, having a gross weight, including coal and truck, of 14,000 pounds, was being driven by one William M. Ross, in the employ of defendant, southward on said street. When it reached a point thereon, a short distance south of 25th Street, on the west side of the center of the street, his truck collided somewhat "head-on" with a Ford touring car driven by plaintiff's husband. Plaintiff, who was sitting on the right side of the front seat with her eighteen months old baby on her lap, was thrown against the windshield, which at the same time was broken, and then fell out, retaining her child in her arms, and it was not injured. Her husband, who was thrown against the wheel, but not hurt, helped her up, and she walked into a house nearby on the west side of the street, where she washed her face and examined her injuries. She then came out of the house and entered a taxicab, which had been called; and after sitting in it for ten or fifteen minutes was driven home with her child, her husband remaining at the scene.

The case was first brought against both Kinney and his driver, Ross. At the close of all the evidence plaintiff dismissed as to defendant Ross.

There was a verdict and judgment in plaintiff's favor for $ 3,500, from which defendant appealed to this court.

The allegations of negligence in the petition were as follows:

"That on the 2nd day of November, 1925 . . . the defendant, William M. Ross, driving a coal truck for and on behalf of The G. T. Kinney Coal Company, carelessly and negligently caused, allowed and permitted said coal truck to collide with the automobile in which plaintiff was riding. . . .

"Plaintiff says that the defendants were guilty of carelessness and negligence in causing said collision in the following respects, to-wit:

"(a) In that the said William M. Ross was driving said coal truck in a southerly direction on the east side of Tracy Avenue, the same being the wrong side on which to drive said truck, and as result thereof said collision occurred, and the plaintiff injured as aforesaid.

"(b) In that the said William M. Ross, driver of said coal truck, as aforesaid, did not have the same under proper control, and as result thereof ran into and collided with the car in which plaintiff was riding, causing her injuries.

"(c) In that the said William M. Ross, driver of said coal truck, as aforesaid, did not keep a reasonably sufficient lookout for the car in which plaintiff was riding, and as result thereof said collision occurred and the plaintiff was injured.

"(d) In that, although said William M. Ross saw, or by the exercise of reasonable care and caution could or should have seen the plaintiff and the car in which she was riding in time to have stopped said truck or slackened the speed thereof, and thereby have prevented injuring the plaintiff, the plaintiff being in perilous and dangerous position at said time and oblivious of her danger and unable to extricate herself therefrom, but the said William M. Ross failed, neglected and refused so to do.

"Plaintiff says that the foregoing acts of negligence contributed separately and concurrently to cause the plaintiff's injuries."

Defendant's answer was a general denial, and a plea of contributory negligence.

Appellant's first assignment of error is the overruling of defendant's demurrer at the conclusion of plaintiff's evidence. It does not appear in the record that a demurrer was filed at the close of all the evidence. Defendant's motion for a new trial alleged as one ground therefor the overruling of such demurrer at the close of all the evidence, and defendant now claims that the omission to show its filing in the abstract of record was an oversight. However, defendant does not thereby lose his right to review of the whole evidence on the question of its sufficiency to sustain a verdict. In the case of Pullen v. Hart, 293 Mo. 61, 238 S.W. 437, Judge GRAVES, speaking for the court, said:

"The defendant did file a demurrer to the evidence at the close of plaintiff's case, and such being overruled he put in his own case. Can he now urge that the evidence as a whole shows no case made by plaintiffs? To this we unhesitatingly say, Yes. . . . In other words, in strict law actions, if the defendant demurs upon the close of plaintiff's case, and does not stand upon such demurrer, but puts in his own case, he only takes the chances of aiding plaintiff's facts, by his own facts. He does not thereby lose the right to insist, without further demurrer, that the whole evidence, introduced by both sides, fails to disclose a case for plaintiff."

Plaintiff's husband testified as follows:

"I was just driving down there at the ordinary rate of speed, which I usually use, and have been ever since I have been driving a car, and there was a coal truck coming up the street, and he was going as fast as I presume he could go, which was not very fast, because it was a loaded truck, he was trying to make the grade on account of being a hill, and I was driving along, never paying any more attention to him than I would any other car, and the first thing I know, when in a short distance in front of me, he swung over on my side, the right, and it was so sudden and such an unexpected thing for me, that I see he would hit me if I continued the way he was going, because we were very close together, and to save my family and myself, I turned to the left side and slowed up, and as I was about to stop, was almost stopped, I was on the left side right at that time, but not clear over to the curb, or within a couple of feet of the curb, the front part of my car--and he hit my right hand hub--that is, his front wheel run right into my right hand hub. . . . I called up the police department; they connected me with one of the outside stations, and said they would send a man right away. I asked the fellow to stay, and he never got down off the truck, as I remember. I waited around, and they didn't come, so I called the department again, and they said they was busy that day, and could not make a call unless some one was terribly injured; so I then called up the Kinney Coal Company."

Also, that after defendant's representative came:

"So I showed him, I wanted to show him the position of the truck, because it was so apparent in the street, you could see where he had made a great big circle around a little indentation, a low spot, in the street, which he could have gone through if he wanted to, but he didn't want to, and did not, and his truck was easily fully on the east side of the road when it was going around this place. . . .

"Q. Where was the rear end of this truck with respect to the center of the street? A. It was about two feet on the east side of the center of the street at that time.

"Q. Now, so the record will get the directions properly, Mr. LaPierre, in what direction was the struck facing? A It would be facing southwest.

"Q. The front end southwest--and the rear end? A. Northeast.

"Q. Northeast. What direction was your car facing? A. My car was facing northwest."

Plaintiff herself testified:

"When I noticed the truck, it was coming right towards us, and when I saw it was going to hit us, I closed my eyes, and the first thing I knew I hit the windshield, and was then down on the running board.

"Q. When the truck was coming towards you, before you closed your eyes, what side of the street was the truck on, if you recall? A. The truck was on the east side of the street.

"Q. In what direction was it running at that time? A. Coming straight toward us.

. . . .

"Q. Can you show the jury here in some way, in the courtroom, about how close you were when you closed your eyes? A. It was closer than to that, to one of those poles (indicating a pillar in the courtroom).

"Q. One of these pillars? A. Yes, sir.

"Q. Where was your car, now, what side of the street was it when it was coming towards you and you closed your eyes? A. We were on the right hand side.

"Q. On the east side? A. East side of the street; and the truck came right towards us.

"Q. Then, you closed your eyes? A. Yes, sir.

. . . .

"Q. You were holding your baby in your arms, on the right hand side of your husband? A. Yes, sir.

"Q. That would put you on the east side of Tracy Avenue, as you came down the street? A. Yes, sir.

"Q. Now, you say you first observed the truck, as I understand you, when it was about a distance from you as far as to that pillar (referring to pillar in the courtroom)? A. Yes, sir.

"Q. You are approximating...