Polokoff v. Sanell
| Decision Date | 05 July 1932 |
| Docket Number | No. 17557.,17557. |
| Citation | 52 S.W.2d 443 |
| Parties | POLOKOFF v. SANELL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.
"Not to be officially published."
Action by Freda Polokoff against David Sanell. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Harris & Koontz, of Kansas City, for appellant.
Jas. T. Sadler and Chas. N. Sadler, both of Kansas City, for respondent.
Plaintiff sued defendant to recover damages on account of injuries received by her while riding as an invited guest in an automobile driven by the defendant. She obtained a verdict and judgment from which the defendant duly appealed. The errors assigned pertain to the action of the court in overruling a demurrer to the evidence; in giving instruction No. 1 at the request of plaintiff; and in excusing five members of the jury panel on the voir dire examination.
The petition charged general negligence. The controverted question arising upon the first assignment is whether there was sufficient evidence to show any negligence on the part of defendant and whether the case was properly submissible under the res ipsa loquitur rule.
There is evidence of the following facts: Plaintiff is the mother-in-law of defendant. The parties lived in Kansas City. On December 23, 1928, defendant invited plaintiff to accompany him, his wife, and children to St. Joseph, Mo., on a visit to one of plaintiff's daughters. Plaintiff accepted and rode with her daughter, son-in-law, and their two children to St. Joseph over United States Highway No. 71, and after a visit started back to Kansas City at about 9 o'clock at night over the same road. It was a concrete highway. A brother-in-law of defendant with his wife who lived in Kansas City were also visiting in St. Joseph the same day, and the parties planned to leave there together in their separate cars to make the return journey. In so doing defendant's car followed the other car which outdistanced that of defendant and ran far ahead of it and at most times out of view. At a place on the highway known as the midway point between the two cities there is a curve or offset in the road, and proceeding to the south it turns for a short distance to the east and thence south. The accident occurred near the point where the road turns to the east, at which place the highway was wet and slippery. Defendant was driving a Chevrolet coach and his relative who preceded him was driving the same kind of car.
Plaintiff testified she was riding in the rear seat of the car with defendant's six year old daughter. Defendant and his wife occupied the front seat; that defendant invited her to go on the journey; that he drove the car back to Kansas City; that she knew nothing about driving an automobile. There had been some snow on the road that morning, but when they started home at night The other car was ahead of them. She testified that she could not see out in front of the car from where she was in the back seat. In describing what happened she said: Witness testified that she had ridden with defendant before and that he was driving faster than he usually drove; that he did not slow up any as he approached the curve. There was no other car in the road at the time and none passing in either direction just before the accident. The car did not strike anything before it went into the ditch; it did not turn over. Some one helped plaintiff out of the car. She said: "I was excited and didn't know nothing, I was so scared." At the time she did not have any clear idea of just what took place. In addition to the foregoing, the story as related by her is shown in the main by the following questions and answers:
On cross-examination the following was developed: Plaintiff testified that when the party left Kansas City there was snow on the ground, but during the day the weather was not freezing and the snow disappeared. And then the following questions and answers:
The evidence shows that after the wheels of the car slipped into the ditch plaintiff was assisted out of the car and stood upon the highway or near it in a state of more or less excitement until the car of defendant's relative returned to the scene of the accident. The occupants of the car which had been preceding that of defendant appeared to have waited some period of time for the defendant to overtake them, and he not having arrived they returned on the road to ascertain the cause of the delay. When they got to the scene of the accident, they took plaintiff into their car for a short time until the car of defendant had been drawn back upon the road. Plaintiff then got out of the other car and again entered defendant's car, but insisted on riding in the front seat instead of the rear seat, which she did on the return from that point to her home in Kansas City. She received a severe sprain and a fracture of small portions of the bone in one of her wrists, and sustained other bruises and injuries the nature and character of which are all fully described in the evidence.
No witness, other than plaintiff, testified concerning the actual occurrences; but Mrs. Epstein, who was riding in the car ahead of defendant, testified in behalf of plaintiff in reference to the injury suffered by the plaintiff, and to some extent in reference to the condition of the highway, on which subject is the following:
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