Powell v. Schofield
| Decision Date | 30 March 1929 |
| Citation | 15 S.W.2d 876,223 Mo.App. 1041 |
| Parties | FRED POWELL, RESPONDENT, v. F. H. SCHOFIELD, APPELLANT. [*] |
| Court | Missouri Court of Appeals |
Appeal from Ripley County Circuit Court.--Hon. Charles L. Ferguson Judge.
AFFIRMED.
Judgment affirmed.
Joslyn & Boone for appellant; W. C. Russell, of counsel.
(1) Plaintiff's contributory negligence in failing to reduce his speed and bring his car under control after he became blinded by the glaring lights of the approaching car and after he had turned his own lights out and reduced the distance at which he could see an object ahead of him was the sole cause of the injury. Therefore defendant's demurrer should have been sustained. Sec. 19, Laws of Mo. 1921 (Ex Sess.), p. 91; Sec. 22, Laws of Mo. 1921 (Ex. Ses.), p. 95; West Const. Co. v. White (Tenn.), 172 S.W. 301; Lauson v. Fon du Lac (Wis.), 123 N.W. 629; MacDonald v. Yoder (Kan.), 101 P. 468; Killgore v. Birmingham R. R. Co., 75 So. 996; Day v Cunningham, 125 Me, 328, 133 A. 855, 47 A. L. R. 1229; Short v. State, 179 N.Y.S. P. 539; Buddenburg v. Kavanagh, 17 Ohio A. 252; Esterly v. Troop, 29 Pa. Dist. 343; Grosz v. Bone, 48 S.D. 65, 201 N.W. 871; Jaquith v. Worden, 132 P. 33, 48 L.R.A. (N.S.) 827; Robinson v. Mutnick (N.J. Sup.), 131 A. 67 (2) The negligence charged in the petition is that defendant "carelessly and unlawfully stopped same (meaning the bus) on the concrete pavement on said highway," etc., while the undisputed testimony is that the bus driver did not stop the car at all. It stopped because the gas line between the gas tank and the vacuum tank bursted. Therefore there is a fatal variance between the negligence charged and the negligence proven. Therefor appellant's demurrer to the testimony should have been sustained. Kenrick v. Harris, 171 Mo.App. 208; Cogan v. Railroad, 101 Mo.App. 179; Dow v. Railroad, 116 Mo.App. 555; Houck v. Railroad, 116 Mo.App. 559.
Cope & Tedrick for respondent.
(1) The court did not err in overruling defendant's demurrer offered at the close of plaintiff's case, for the evidence must be viewed in the light most favorable to plaintiff, admitting as true every fact and inference that may be reasonably deduced therefrom. Hunter v. Fleming et al., 7 S.W.2d 749; Paul v. St. L. & S. F. Ry. Co., 275 S.W. 575; Zumwalt v. C. & A. R. R. Co., 266 S.W. 717; Tyrer v. Moore, 250 S.W. 920; Flack v. Ball, 240 S.W. 465, 209 Mo.App. 389; Evans v. General Explosive Co., 239 S.W. 487, 293 Mo. 364; Hestand v. Hamlin, 262 S.W. 396; Ross v. Hoffman, 269 S.W. 679; Roper v. Greenspon, 189 S.W. 1107, 272 Mo. 288, 210 S.W. 922; 42 C. J. 1012. (2) Defendant's demurrer offered at the close of the entire case was properly overruled. Where defendant does not stand on demurrer to the evidence at the close of plaintiff's case, but offers evidence in support of his defense, final demurrer searches all testimony to see if plaintiff's case was not aided by defendant's proof and the court will consider all testimony offered by defendant that is favorable to plaintiff and disregard all unfavorable testimony. Hague v. Threadgill, 236 S.W. 895; Scobey v. Allen Cooperage Co., 236 S.W. 686, 210 Mo.App. 301; Lindsay v. Shaner, 236 S.W. 319, 291 Mo. 297; Link v. A. Coast Line R. R. Co., 233 S.W. 834; Lorton v. Mo. Pac. R. R. Co., 267 S.W. 385; Van Hemelin v. Eads, 244 S.W. 942; Tierney v. Riggs (Wash.), 252 P. 163. (3) Whether or not plaintiff was guilty of contributory negligence was a question that was properly submitted to the jury. Ross v. Hoffman, 269 S.W. 679; Roper v. Greenspon, 210 S.W. 922, 272 Mo. 288, 198 S.W. 1107; Church v. Kansas City, 280 S.W. 1053; Kendrick v. Kansas City, 237 S.W. 1011; Murphy v. Hawthorne, 117 Or. 319, 322 P. 79, 44 A. L. R. 1397. (4) No variance between the allegations in the pleadings and the proof is material unless the opposite party has been actually misled thereby to his prejudice. Shantz v. Shriner, 150 S.W. 727, 167 Mo.App. 635; Cornell v. C. R. I. & P. Ry. Co., 128 S.W. 1021, 145 Mo.App. 598; Heryford v. Spitcaufeky, 200 S.W. 123; Kriell v. Lutz, 210 S.W. 926. (5) A party relying on a variance between the pleadings and the proof must show by his affidavit not only that he was misled, but in what respects before the question of variance will be considered; and if he fails so to do, it is too late to complain in the Appellate Court. Sec. 1272, R. S. 1919; Detchemendy v. Wells, 253 S.W. 150; White v. Farmers Mut. Fire Ins. Co., 71 S.W. 707, 97 Mo.App. 590; Newton v. Harvey, 202 S.W. 249; Olive St. Bank of St. Louis v. Phillips, 162 S.W. 721, 179 Mo.App. 488; Thomas v. Bambric Bros. Const. Co., 175 S.W. 258, 189 Mo.App. 623. (6) Instructions must be read as a whole and as a single charge. Rudy v. Auteurieth et al., 287 S.W. 850; Schultz v. Schultz, 293 S.W. 105; Walker v. Mitchel Clay Mfg. Co., 291 S.W. 180; Hildebrand v. St. L. & S. F. Ry. Co., 298 S.W. 1069. (7) If, in the opinion of counsel for defendant, plaintiff's instruction on the measure of damages is too general in its scope, or is likely to be misunderstood by the jury, it is their duty to ask the modifications and explanations, in an instruction embodying their views. Browning v. Wabash Western Ry. Co., 27 S.W. 644, 124 Mo. 55; State ex rel. United Rys. Co. v. Reynolds, 165 S.W. 729, 257 Mo. 19; Dyrez v. Hammond Packing Co. et al., 194 S.W. 761.
Smith, J., not sitting.
This is an action for damages incurred in an automobile collision. A trial was had to a jury resulting in a verdict and judgment for plaintiff in the sum of $ 5250 and defendant has appealed. Error is assigned in overruling the general and special demurrer offered by defendant at the close of plaintiff's testimony. Defendant did not stand on his demurrer but offered evidence in his defense. Plaintiff is therefore entitled to the benefit of all favorable evidence in the whole case and may use defendant's evidence in support of his own. [Krummenacher Drug Co. v. Chouteau, 296 S.W. 255; Hague v. Threadgill, 236 S.W. 895.] In his second assignment defendant charges error in overruling his instruction in the nature of a demurrer, offered at the close of the whole case. For the purposes of this demurrer it is elementary that plaintiff's evidence is to be taken as true and he is entitled to all reasonable inferences therefrom, while defendant's contrary evidence is to be taken as untrue. [Durbin v. Railroad, 275 S.W. 358, 360.] The evidence most favorable to plaintiff may be briefly stated as follows: Plaintiff is a brick mason and, in October, 1927, was employed as such in Poplar Bluff, Missouri. At that time he was making his home in the town of Fisk, on U.S. Highway No. 60, ten miles east of Poplar Bluff. This highway is paved with concrete, the slab being eighteen feet in width, with six foot shoulders on either side. The highway has few grades or curves but runs through a more or less swampy, flat country, which fact, under certain conditions, helps to cause a more or less foggy condition of the atmosphere, thereby causing the pavement to become damp.
On the evening of October 20, 1927, at about seven P. M. plaintiff was driving a new Chrysler coupe from Poplar Bluff to Fisk. He had just purchased the coupe on that day, but was familiar with the operation and driving of automobiles, having driven several different makes of cars. At that time a bus of defendant's had stopped on the highway, on the right hand side thereof, headed in the direction plaintiff was going. Plaintiff's testimony indicates that he had not at any time during the trip from Poplar Bluff driven his automobile at a greater rate of speed than thirty miles per hour. As he approached a point on the highway five or six miles east of Poplar Bluff, it was dark and he observed the lights of another automobile approaching him; the lights of the approaching car were of sufficient brilliancy as to almost blind him temporarily and to render it difficult for him to see the road ahead. These lights blinded plaintiff "a good ways" before the car passed him. At that time plaintiff had slowed down his car to about fifteen miles per hour turned on or "flicked" his dimmers but the bright lights of the other car continued to shine; plaintiff proceeded and pulled out to the right as he approached the on-coming car. Immediately after he had passed or was even with the car with the brilliant headlights, he saw the bulk of the bus fifteen or twenty feet ahead of him. Plaintiff immediately applied his brakes and swerved to the left in an effort to miss the bus. The pavement was damp and the weather foggy. He was unable to clear the bus. The right front fender of plaintiff's automobile struck the left rear end of the bus and plaintiff's car was thrown sideways and ran off the concrete slab into a ditch on the left side of the road and overturned. Plaintiff testified there were no lights whatever on the bus. Defendant's employee admitted that neither the headlights or tail light was burning on the bus but says that he had thrown the switch to turn on the little marker lights on the upper rear corners of the bus, but did not go around to the rear to see whether or not they were lighted. From his testimony, it seems, he was working on the gas line near the motor, which, he says had bursted and that fact caused the stopping of the bus on the highway. The bus had been stopped about twenty-five minutes when the collision occurred. The bus was fully on the pavement and according to plaintiff, was occupying about half the eighteen foot slab. As to the lights on his own car, plaintiff testified on cross-examination as follows:
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