Proctor v. Ruppert
| Decision Date | 26 January 1942 |
| Docket Number | No. 20011.,20011. |
| Parties | LEWIS C. PROCTOR, RESPONDENT, v. JACOB RUPPERT, A CORPORATION, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jackson County. — Hon. Brown Harris, Judge.
REVERSED AND REMANDED.
Thompson & Osborne and William R. Barnes for respondent.
(1) The court properly overruled defendant's demurrer offered at the close of all the evidence and submitted the questions of proximate cause and plaintiff's alleged contributory negligence to the jury. Clason v. Lenz (Mo.), 61 S.W. (2d) 727; Mayne v. May Stern Furniture Co. et al. (Mo. App.), 21 S.W. (2d) 211; Clark v. Atchison & Eastern Bridge Co. (Mo.), 24 S.W. (2d) 143; Menard v. Goltra (Mo.), 40 S.W. (2d) 1053; Peck v. W.F. Williamson Advertising Service, etc. (Mo. App.), 68 S.W. (2d) 847; Munden v. Kansas City, Missouri (Mo. App.), 38 S.W. (2d) 540; Roper v. Greenspon et al. (Mo.), 198 S.W. 1107; Roper v. Greenspoon et al. (Mo. App.), 210 S.W. 922; Jones v. Southwest Pump & Machinery Co. (Mo. App.), 60 S.W. (2d) 754. (2) Evidence that plaintiff sustained a hernia as a result of the collision in question was properly admitted. Defendant did not lodge a proper or timely objection to the admission of such testimony. Defendant's motion for new trial contains no assignment of error sufficient to embrace its point now claimed. Allegations of plaintiff's petition broad enough to include hernia. Third National Bank v. Yorkshire Ins. Co. (Mo. App.), 267 S.W. 445; Noland v. Morris & Co. (Mo. App.), 248 S.W. 627; Bach v. Ludwig (Mo. App.), 109 S.W. (2d) 724; Webster's New International Dictionary of the English Language; Smith v. Kansas City Rys. Co. (Mo. App.), 232 S.W. 261; Malone v. Kansas City Rys. Co. (Mo. App.), 232 S.W. 782; Kieth v. American Car & Foundry Co. (Mo. App.), 9 S.W. (2d) 644; McCauley v. Anheuser-Busch Brewing Ass'n (Mo.), 254 S.W. 868; Bales v. Kansas City Pub. Serv. Co. (Mo.), 40 S.W. (2d) 665; Swinehart v. Kansas City Rys. Co. (Mo. App.), 233 S.W. 59; Smart v. Raymond (Mo. App.), 142 S.W. (2d) 100. (3) Dr. Clark's testimonk that the conditions which he found existing upon his last examination of plaintiff could have been caused by the collision was properly admitted. (4) Argument to the jury was proper. Asadorian v. Sayman (Mo. App.), 282 S.W. 507; Burton v. Phillips (Mo. App.), 7 S.W. (2d) 712; Huskey v. Metropolitan Life Ins. Co. (Mo. App.), 94 S.W. (2d) 1075; Gunter v. Whitener (Mo. App.), 75 S.W. (2d) 588; City of Kennett v. Katz Construction Co. (Mo.), 202 S.W. 558; Marlow v. Nafziger Baking Co. (Mo.), 63 S.W. (2d) 115; Raymore v. Kansas City Pub. Serv. Co. (Mo. App.), 141 S.W. (2d) 103. (5) The verdict of the jury is not excessive. Pence v. Kansas City Laundry Serv. Co. (Mo.), 59 S.W. (2d) 633; Hammack v. City of Sedalia (Mo. App.), 105 S.W. (2d) 34; Fawkes v. National Refining Co. (Mo. App.), 130 S.W. (2d) 684; Williams v. Wells et al. (Mo. App.), 29 S.W. (2d) 207; Schneider v. Silbergeld (Mo. App.), 31 S.W. (2d) 267.
Louis R. Weiss and Mosman, Rogers & Bell for appellant.
(1) The court erred in overruling defendant's demurrer offered at the close of all the evidence, for the reason that the undisputed evidence shows conclusively that the alleged negligence of defendant was not the proximate cause of the casualty whereby plaintiff claims to have been injured. Krelitz v. Calceterra (Mo.), 33 S.W. (2d) 909, 910, 911; Frigge v. Brooks, 228 Mo. App. 758, 72 S.W. (2d) 995; State ex rel. v. Cox (Mo.), 276 S.W. 871; Vassia v. Highland Dairy Farms, 232 Mo. App. 886, 104 S.W. (2d) 686; Carle v. Akin (Mo.), 87 S.W. (2d) 410; Geisen v. Luce et al. (Minn.), 242 N.W. 8; Roper v. Greenspon (Mo. App.), 192 S.W. 149; Fuld v. Maryland Casualty Co. (La.), 178 So. 201; Kline et al. v. Moyer et al., 325 Pa. 357, 191 Atl. 43. (2) The court erred in refusing to give defendant's Instruction B in the nature of a demurrer to all the evidence, for the reason that plaintiff was guilty of contributory negligence as a matter of law. Sec. 8385, R.S. Mo. 1939; Devine v. Barton et al. (Mo. App.), 22 S.W. (2d) 877; Moore v. East St. Louis & Suburban Ry. Co. (Mo. App.), 54 S.W. (2d) 767, 770; State ex rel. v. Shain, 105 S.W. (2d) 915; Wheeler v. Wall, 157 Mo. App. 38, 137 S.W. 63; Winiger v. Bennett (Mo. App.), 104 S.W. (2d) 413; Albrecht v. Waterloo Construction Co (Iowa), 257 N.W. 183; Scott v. Hoosier Engineering Co. (W. Va.), 185 S.E. 553. (3) The court erred in admitting in evidence the claim that plaintiff suffered a hernia in the casualty, and erred in refusing to strike out the testimony of plaintiff that he suffered a hernia, for the reason that such testimony is broader than the pleading. Kinlen v. Ry. Co., 216 Mo. 173, 174, 115 S.W. 533; Hall v. Coal & Coke Co., 260 Mo. 271, 168 S.W. 927; Breen v. United Rys. Co. (Mo.), 204 S.W. 522; Walquist v. Kansas City Rys. Co., 292 Mo. 34, 237 S.W. 495; Knaup v. Western Coal & Mining Co. (Mo.), 114 S.W. (2d) 969; State ex rel. v. Allen, 124 S.W. (2d) 1080, 1083, 1084; Grott v. Shoe Company (Mo.), 2 S.W. (2d) 785, 787; Chawkley v. Wabash R. Co., 317 Mo. 782, 297 S.W. 28. (4) The court erred in permitting Dr. Clark, a witness for plaintiff, to testify, over objection, that the injuries he found including the hernia could have been caused by the collision. (5) The court erred in (a) not condemning the misconduct and prejudicial argument of plaintiff's counsel in appealing to the jury to bring in a verdict on behalf of plaintiff and his family, and in not declaring a mistrial and discharging the jury on defendant's motion on account of such prejudicial statement and (b) in not condemning the misconduct and improper remarks of counsel in referring to defendant as "the seaboard corporation," and the subsequent remarks of the court that there was no stigma reflected in calling the defendant a "seaboard corporation," and the court's refusal to discharge the jury for making said arguments, all prejudicial to defendant. Norris v. Railroad Co., 239 Mo. 695, 144 S.W. 783; State ex rel. v. Shain, 101 S.W. (2d) 19; Goucher v. Woodmen Accident Co. of Lincoln, Nebraska, 104 S.W. (2d) 295; Jackman v. St. Louis & H. Ry. Co. (Mo. App.), 206 S.W. 244, 246, 247. (6) The verdict of the jury is excessive.
This action arose out of an automobile collision between a car operated by plaintiff and a car driven by one James Ball in the business of the corporate defendant. Ball was joined as a codefendant, but plaintiff dismissed the case as to him.
The substance of the negligence charge is that the defendants negligently caused, allowed or permitted their said automobile to be stopped on the main traveled portion of the highway with its right-hand side not as near the right-hand side of the highway as practicable, and thereby negligently created a dangerous obstruction to traffic on said highway, and particularly to the automobile plaintiff was operating.
The separate answer of the corporate defendant, in addition to a general denial, states that plaintiff's injuries if any, were due to and caused by his own carelessness and negligence contributing thereto, in that plaintiff operated his automobile at a high, dangerous, reckless and unlawful rate of speed upon the highway at the time and place in question, failed to keep a sufficient lookout for automobiles upon the highway, and that he so carelessly and negligently operated, managed and controlled his automobile as to cause same to collide with the automobile of James Ball; and that the plaintiff saw, or in the exercise of the highest degree of care on his part, could have seen said automobile in time, with the appliances at hand and with safety to himself, to have stopped said automobile, checked the speed thereof, or turned the same aside and thus averted the collision, all of which plaintiff carelessly and negligently failed to do.
There is evidence that on March 7, 1939, James Ball accompanied by one Grovier, who made occasional trips with him, left Kansas City in a four-door Buick sedan on their way to Des Moines, Iowa. Ball was making the trip in connection with the business of his employer, the corporate defendant. The route of the journey was over U.S. Highway No. 69. When Ball reached a point on said highway approximately five miles southwest of Bethany, he either stopped or slowed down his car and got out of the automobile in order to extinguish a fire in his clothing which had been occasioned by a lighted cigarette. He directed his companion to take charge of the wheel and intended to pass around the car to the right side and enter it again.
In the meantime, plaintiff was approaching the Buick car from the rear driving an Oldsmobile sedan. He saw the Buick car when he was 400 to 450 feet from it and was traveling at a speed of 60 to 65 miles an hour. According to his testimony he could not see the entire car until he was within 375 to 400 feet away, and at that time he did not know that it was stopped on the highway. When he was about 200 to 250 feet in the rear of the Buick, he observed that the Buick car was stationary. He then turned to the left in order to pass, and when upon the west side of the highway he observed a car approaching from the opposite direction approximately the same distance that he was from the Buick. Plaintiff then turned his car back to the right and applied the brakes with full force. At this time, according to his evidence, he was 100 to 125 feet away from the Buick. He had seen a man standing on the right-hand side of the car. On account of his presence in that position and observing that the approaching car from the opposite direction was either slowed down or stopped, plaintiff again turned his car to the left in an effort to pass the Buick. The front end of his car passed by, but the rear end skidded or sideswiped the Buick car. Plaintiff's car continued on across the highway and stopped on the west shoulder a short distance in front of the Buick. Plaintiff's evidence...
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