Plannett v. McFall
| Decision Date | 04 May 1926 |
| Docket Number | No. 19145.,19145. |
| Citation | 284 S.W. 850 |
| Parties | PLANNETT v. MoFALL. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court, Robert W. Hall, Judge.
"Not to be officially published."
Action by Charles Plannett against J. A. McFall, doing business as the McFall Auto Livery Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Holland, Rutledge & Lashly, and R. L. Ailworth, all of St. Louis, for appellant.
Thomas Al Grace, John S. Marsalek, and Mark Eagleton, all of St. Louis, for respondent.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant as chauffeur on December 31, 1922, when the automobile driven by plaintiff was struck by another car. The verdict of the jury was in favor of plaintiff in the sum of $15,000. In compliance with an order of the court, the sum of $10,000 was remitted, and judgment entered for plaintiff in the sum of $5,000, from which defendant has appealed.
The petition counted upon the following assignments of negligence: (1) That defendant provided plaintiff with an automobile which was not reasonably safe, in that the brakes and the gasoline feed line were out of repair and were defective ; (2) that defendant failed to exercise ordinary care to properly inspect said automobile ; (3) that defendant failed to repair it ; (4) that defendant ordered and required plaintiff to use said automobile while in a state of disrepair, when defendant knew, or by the exercise of ordinary care would have known, that in attempting to comply with said order plaintiff was likely to be injured ; and (5) that defendant failed to warn plaintiff of said detects.
The answer, after a general denial, charged that the injuries were caused by the negligence of plaintiff directly contributing thereto: First, in operating the automobile at a high, reckless, and dangerous rate of speed ; second, in failing to keep as near the right-hand curb as possible; third, in failing to give warning of his approach at the intersection where the accident occurred ; fourth, in failing to yield the right of way to an automobile approaching the intersection from the right; fifth, in failing to exercise proper care to watch for automobiles approaching the intersection ; and sixth, in failing to wait until the automobile which struck plaintiff's car had crossed the intersection, or to maintain a low rate of speed in entering the intersection so as to have permitted the other automobile to pass without danger. The reply was conventional.
The evidence ""disclosed that plaintiff was 35 years of age, and had been employed by defendant as a chauffeur for three or four years prior to December 31, 1922, on which date he was injured. Defendant was engaged in the livery business, and furnished cars for use in funerals as well as for other purposes.
The car plaintiff was driving when injured was a large Packard limousine, seating six passengers in the rear, and having the driver's seat in front, with room for two occupants. This car had been taken to a funeral parlor on Fair and Florissant avenues in North St. Louis by a chauffeur named William Ollerman. Having discovered that the brakes were defective and would not hold and that the gasoline feed Would choke, Ollerman, after delivering the car at the funeral parlor, called up defendant, advising him that the Packard car was not in safe condition, and that he did not care to drive it, and asked permission to change cars with plaintiff, to which request defendant consented. The Packard was then turned over to plaintiff, who knew nothing of its condition. He waited until the funeral procession had left, and about 4 o'clock began the return trip to the garage at Nineteenth and Chestnut streets. Shortly after he started, he attempted to use the service brake and noticed that, although it had some effect, it was not holding properly. This condition indicated to him that the brake either was out of adjustment or that the brake lining was worn. It held sufficiently, however, for him to slow down at each crossing. He had no occasion to use the emergency or hand brake until immediately before the accident occurred, nor had he attempted to bring the automobile to a complete stop.
Plaintiff was injured in a collision between the Packard automobile he was driving and a Ford coupe driven by a man by the name of Coyne, at the intersection of Twentieth street and Franklin avenue. Twentieth street runs north and south, is paved with brick, and has no street car tracks upon it. Franklin avenue runs east and west, is paved with granitoid blocks, and has one street car track in the middle of the street. Both streets are approximately 50 feet in width.
Plaintiff was driving southwardly on Twentieth street towards Franklin avenue at a speed of 6 or 8 miles per hour. As he came up to the building line he observed a Ford coupe coming from the west on the south side of Franklin avenue, midway between the car tracks and the south curb. He first observed the Ford automobile about half a block to the west or 150 to 160 feet from Twentieth street. Plaintiff was driving on the west side of Twentieth street about 2 or 3 feet from the curb. He testified that when he first saw the Ford he was unable to tell the speed at which it was running, but that he proceeded across Franklin avenue, thinking he would have sufficient time to cross in safety. As he reached the street car tracks he looked to the west again and saw that the Ford was coming rather fast, whereupon he decided that he had better stop his car and permit the Ford to go on by. Accordingly, he applied pressure to the foot brake, but received no response whatever. Then he put on the emergency brake, and found that it would not hold. Thereupon he pressed upon the accelerator in an attempt to pass ahead of the Ford car. The Packard made only a slight jump and then "choked up" and kept on rolling at about the same rate of speed as when fie first came to the street car tracks. At that moment the Ford car hit the right rear wheel of" the Packard, turning it over to the left, and severely injuring plaintiff's left arm. and hand.
The evidence disclosed that it was no part of plaintiff's duty to repair or inspect his car, and that, if anything was found out of order with the brakes or with other parts of the car, his instructions from defendant were, when he turned the car into the garage, to make a written report of the defective conditions, and place the report on a file which was kept outside of the office for that purpose. The repairs were then made by the mechanics under the supervision of a shop foreman named Gates. In fact, plaintiff testified on cross-examination that he was not allowed to make any adjustments or repairs,. even of a minor nature, on the car, as long as he was able to drive it to the garage.
The evidence was that the Packard car with the brakes in good condition, traveling at a speed of 6 or 8 miles an hour on a dry street such as Twentieth street was at the time, could have been stopped in a space of 2 or 3 feet.
It was disclosed that the defective condition of the service brake and the gasoline feed line had been discovered by a chauffeur named Epstein on the night of December 30, 1922, and that a written report had been given at that time of this condition. The emergency brake had been out of repair for a year. Defendant, testifying in his own behalf, admitted that this report was received by him on the morning of December 31st, and that he himself at that time tightened the foot brake. However, he did not examine the brake linings.
At the close of all the evidence, defendant asked the court to give a peremptory instruction in the nature of a demurrer to the evidence, which request was refused. This ruling is assigned as error. It appears from his brief that defendant does not contend that plaintiff failed to make a case for the jury, so far as proof of defendant's negligence was concerned, but rather that the evidence conclusively shows that plaintiff was guilty of contributory negligence as a matter of laud.
[1, 2] Defendant draws this conclusion from the fact that plaintiff, an experienced chauffeur, with knowledge that the service brake was out of repair, made no investigation to find out the reason the brakes were not holding, and made no attempt to tighten or repair them. That plaintiff was aware of the defective condition of the service brake is admitted. However, there is no evidence that he knew that the emergency brake was out of repair or that the gasoline feed line would choke, both of which conditions played a part in causing the collision. But," even though plaintiff knew that the service brake was not holding properly, he may not be convicted of contributory negligence as a matter of law in continuing to drive the car in such condition unless the danger to be incurred thereby was so imminent and glaring that a reasonably prudent person would not have incurred the risk. . bring the car to a complete stop nor to use the emergency brake. In view of these facts and in the light of the information, actual and constructive, which plaintiff possessed, we clearly cannot say that the danger to be incurred in driving the automobile was so obvious,...
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