Powell v. Brosnahan et al.
| Decision Date | 07 March 1938 |
| Docket Number | No. 19020.,19020. |
| Parties | LOLA G. POWELL, RESPONDENT, v. EMMET V. BROSNAHAN ET AL., DEFENDANTS, HORTENSE BROSNAHAN, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.
AFFIRMED.
Trusty & Pugh and C.W. Terry for respondent.
Guy W. Green, Jr., of counsel for respondent.
Harding, Murphy & Tucker, John T. Harding, David A. Murphy, R. Carter Tucker and John Murphy for appellant.
This is an action under the wrongful death statute. There was a verdict and judgment in favor of the plaintiff in the sum of $6500. Defendant has appealed.
The facts show that plaintiff is the wife of James E. Powell, who met his death on the 7th day of November, 1934, as a result of having been run into by an automobile which was being backed out of her private driveway by the defendant at her residence in Kansas City. No one saw the automobile strike deceased. What happened at the time was established, solely, by defendant's personal testimony.
The driveway in question ran east and west. It extended from the rear of the property, where was situated the garage to the west, eastward to the street for a distance of somewhat more than 100 feet. North of the driveway was situated defendant's house. The driveway was about 9½ feet in width. It was of solid single track construction and composed of concrete for its entire width and length. On the north side of the driveway there was a retaining wall, which began at a point about even with the front porch of defendant's residence. It ran east to approximately the sidewalk line and at its west end the wall was about six inches high and, as it extended east, its height increased until it reached a maximum height, a few feet west of the west edge of the sidewalk, of about twenty-one inches. On the south side of the driveway was another retaining wall, identical in character and construction, except it extended westwardly as far back as the garage. The driveway sloped downward from the west to the east, beginning with about the outer edge of the front porch of the house and toward the sidewalk. At the time of the casualty the automobile was standing in front of the garage with its rear end approximately 100 feet from the sidewalk.
While being backed by the defendant the automobile struck a cart or a wheel barrow, which deceased was pushing up the driveway. The collision took place at a point about thirty-two to forty-two feet west of the sidewalk. The rear end of the automobile, it may be inferred from the evidence, struck the front of the cart. Deceased was knocked unconscious and died in a few hours afterwards.
The cart was about four and one-half feet wide, five feet long, with two handles on the rear and an iron wheel on each side near the front. The wheels were about twelve inches in diameter and the rims were about four or five inches wide. They were far enough apart to run on a ribbon driveway. There was a frame in front to keep the trash from falling from the cart when the handles were lifted up. The top of the frame was about three and one-half feet from the platform of the car and about five feet from the ground. This frame was composed of two uprights on each side of the cart to which were nailed slats about five or six inches wide. The slats ran across the front and between the uprights. The space between each slat was about four or five inches. The cart weighed in the neighborhood of 250 pounds. The car was moved by pushing forward on the handles. It was "almost impossible to pull it." In moving it up grade it was necessary to lean over and push on the handles of the cart and, when it was being moved, the wheels made enough noise to be heard a block away.
Defendant and her husband were members of the Wornall Homestead Association. This association, among other things, collected and disposed of rubbish for its members. The association employed agents to do this work. Among the agents was one, Joe DeVault, for whom deceased worked. Apparently trash had been collected customarily from the rear of defendant's premises by means of the cart in question or a similar one. At least for sometime prior to the collision the cartman used the driveway for the purpose of making the collections. There was evidence that the driveway was used also by deliverymen in making deliveries to the rear of the house. (Although this was denied by the defendant.) The driveway was the only means of reaching the rear of the premises except by going through the house. In coming up the driveway the trashman would push the cart ahead of him in the usual manner.
Defendant testified that a short time prior to one P.M. of the day of the casualty she was preparing to take her small daughter to school, which was about twenty blocks distant from the house; that she had only five minutes to get there; that she left her house by the rear door and entered the car which was on the driveway; that the car at that time was about five or six feet east of the garage facing it; that just before entering the car she looked down the driveway to the east and observed that the latter was clear all of the way to the street; that there was no one on it or approaching it; that she entered the car and started the motor; that she exchanged greetings with her next door neighbor to the south who was on her back porch; that she then sounded the horn on the car for her little girl who was in the house; that she then talked to her neighbor for a few minutes, after which she again sounded the horn; that following this the little girl immediately came out of the house and got into the car; that the witness then looked at the rear vision mirror of the car and thus obtained a view of the driveway behind her; that at that time she had a plain view of the driveway to the east and she saw that the driveway was clear; and there was nothing on it; that she then started backing the car down the driveway, slowly; that, at the same time, she put her head out of the window on the left-hand, or the driver's side of the car, and looked along the retaining wall to the south of said driveway; that from that position she could see the retaining wall on the south side of the car and a portion of the south side of the driveway east as far as the street; that as the car proceeded backward nothing thereafter came on or into the driveway within her vision; that when her car had traversed about half the length of the driveway and when the rear end of it had reached a point toward the east about even with the steps of the small sidewalk in front of the house, which lead from the driveway to the front porch, she heard a noise or crash to the rear of the car; that she immediately stopped the car; that she traversed about two feet from the time she heard the noise until she stopped; that after the car had stopped she told her little girl, who was seated in the front seat beside her, to get up and look out the rear window and see what had happened that the little girl advised her that a man was lying on the sidewalk back of the car; that the witness then got out of the car and walked around to the rear where, for the first time, she observed deceased, who was laying on the north side of the driveway eight or ten feet east of the rear of the car; that the trash cart was located at the foot of the driveway and on the north side thereof with its front end pointed west up to the driveway. It was agreed that deceased's position in the driveway after the collision was from twenty-two to thirty feet west of the sidewalk.
Certain portions of defendant's deposition were read in which she testified that cleanup day was on Wednesday of each month; that the accident occurred on Wednesday; that she had seen trashmen coming on the premises on former occasions; that they came from the south and turned up the edriveway.
At the trial she testified that on the day in question she had seen a trashman eating lunch somewhere nearby and knew that he would be in to collect the trash; that she was expecting the trashman to come that day and get her trash; that immediately after the crash it flashed in her mind that it might be the trashman or the little automobile which the child next door played with, with which she had collided; that the reason it flashed through her mind that it might be the trashman was that she was expecting one; that when the car struck the cart she was not coasting but using power, backing out of the driveway slowly; that she had become a little impatient over waiting for her little girl because the witness had only five minutes to get her to school but she was not rushing at the time. "I was backing slowly."
At one place in her testimony defendant stated that, after she saw the trashman down the street eating his lunch on the curb, she did not give him any more thought until after the accident; that she was not expecting anyone on the driveway.
In her deposition, taken before the trial, she testified that she came out of the house and got into her car; that her daughter remained in the house; that she gave a couple of blasts of the horn to call her daughter; that she waited approximately five minutes until the daughter came out; that the witness became a little impatient in waiting; that she gave some blasts of the horn to get her daughter into the car and gave none after that; that deceased after the collision was lying with his head toward the foot of the driveway, his feet toward the car; that there was no fog or rain that day and that the rear vision mirror and the rear window of the car were clean.
At the trial the defendant admitted that her statements made concerning the times when the horn was blown, that is, that she gave some blasts of the horn to get her daughter into the car, and didn't give any other blasts of the horn, were true and correct. She testified that if she had looked back through the rear vision glass and deceased had been on the driveway...
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