Rader v. David
| Decision Date | 12 January 1948 |
| Docket Number | 20963 |
| Citation | 207 S.W.2d 519 |
| Parties | RADER v. DAVID (RADER, Third-Party Defendant) |
| Court | Kansas Court of Appeals |
John M Cave, of Fulton, and Wm. H. Norton and Edwin C. Orr, both of Columbia for appellant.
Baker & Baker and Frazier Baker, all of Fulton, for respondent.
BOYER PER CURIAM
The action in this case was instituted by J. D. Rader against Delmont David to recover the total sum of $ 330 for damages and the loss of use of plaintiff's pickup truck which was alleged to have been occasioned by the negligent operation of defendant's truck in such a manner as to cause it to run into and against plaintiff's truck. The substance of the specific negligence alleged against defendant is that the defendant violated rules of the road as prescribed by the motor vehicle law of the State, and especially Sec. 8385 R.S.Mo.1939, Mo.R.S.A. Plaintiff's truck was being operated by his wife, Mrs. J. D. Rader, who was joined in the action as a third party.
The defendant filed an answer and a counterclaim in which he denied the charges of negligence made against him; charged plaintiff with contributory negligence and, without admitting liability, pleaded an agreement with the plaintiff to pay him the sum of $ 16 as full satisfaction for any claims that plaintiff had against the defendant arising out of his cause of action. As a counterclaim against both the plaintiff and the third party, defendant demanded judgment against them in the total sum of $ 222 for damages and the loss of use of his tractor and trailer alleged to have been caused by the carelessness and negligence of the plaintiff and the operator of plaintiff's truck. The specific charges of negligence against plaintiff and the third party are practically the same as those made by plaintiff against the defendant.
For reply, plaintiff and the third party denied the allegations of the counterclaim and plaintiff denied the agreement to settle his claim as alleged in defendant's answer.
Upon trial of the case before a jury the verdict was for the plaintiff on his claim in the total sum of One Dollar, and the jury further found for plaintiff and the third party on defendant's counterclaim. Judgment was entered in accordance with the verdict on the 20th day of November 1946. Plaintiff duly filed his motion for a new trial in which he sought a rehearing on the issue of damages alone because of the inadequacy of the verdict or, in the alternative, for a new trial of all the issues in the case for certain alleged procedural errors.
The defendant filed his motion for a directed verdict or a new trial based mainly on the ground that the court erred in refusing to sustain defendant's motion for a directed verdict at the close of all the evidence.
On the 23rd of December 1946, the motions of both parties were overruled by the court. Both plaintiff and defendant filed notice of appeal to this court. The notice of appeal filed by plaintiff states that plaintiff 'appeals from the final judgment entered in this action on the 23d day of December 1946.' Defendant's notice of appeal states that the defendant 'appeals from the final judgment and order of the court overruling defendant's motion for a new trial on the 23d day of December 1946.'
Defendant has filed two motions to dismiss plaintiff's appeal; one on the ground that plaintiff's notice of appeal is insufficient to confer jurisdiction, and the other on the ground that plaintiff's statement of the facts in the case does not conform to the requirements of court rule 1.08. These motions have been examined and we find from the briefs of both parties that they do not afford a sufficient reason to prevent a consideration of the case upon the merits presented by both appeals, and that said motions should be denied.
The brief of plaintiff, as appellant in his case, presents and argues the single point that the trial court erred in refusing to give him a new trial on the issue of damages alone; that such action was arbitrary and an abuse of discretion in view of the evidence in the case which shows that an award of One Dollar is obviously inadequate and the result of passion and prejudice.
The brief of defendant in behalf of his appeal presents and argues the single point that the court erred in failing to sustain his motion for a directed verdict on plaintiff's cause of action for the reason that the evidence shows that plaintiff was guilty of contributory negligence as a matter of law. As respondent to plaintiff's appeal, defendant presents and argues the point that the trial court did not err in overruling plaintiff's motion for a new trial on the question of damages alone. The foregoing, as shown by the briefs of the parties, are the only matters for consideration by this court.
It at once appears that if the contention of defendant that the evidence shows contributory negligence on the part of plaintiff can be sustained all other questions become immaterial. We shall, therefore, first consider the question of contributory negligence as presented by defendant in his appeal, and this calls for a review of the evidence. Certain facts appear from the evidence which are either conceded or not denied. They show that the collision in question occurred on U.S. Highway 40 where it is intersected by U.S. Highway 63 from the north. Highway 40 is an east and west highway. The wife of plaintiff was operating his truck and was on her way home after having delivered plaintiff to his place of employment. She was driving west on Highway 40. East of the point of intersection with Highway 63, for a distance of approximately 400 feet, there are three paved slabs for the accommodation of traffic, the two north slabs being for traffic to the west. On Highway 40 at the intersection there was a caution light maintained, but no stop sign. Defendant was operating his tractor, with a trailer attached, some distance in the rear of plaintiff's truck.
Mrs. Rader testified that she was returning home after taking plaintiff to work when the accident occurred; that she was driving at about 15 or 20 miles an hour and when she entered that section of the highway where there were three lanes, she was in the middle lane and intended to make a turn to the right on Highway 63; that she let the car slow down and gave a signal with her hand up to make a right-hand turn; that she did not know a car was behind her and did not hear any horn blown or anything to indicate that a car was behind her; that she started to make the turn and was hit before she could complete it; that her car was hit on the right-hand fender by the trailer of the David truck; that she was pretty close to the junction when she started to make the turn. On cross-examination, Mrs. Rader admitted that she had given testimony in a deposition to the effect that she had held her hand down to make the turn and that she did not recollect making another similar statement. She explained that she did not understand the question and was confused. She further testified that she did not see the tractor and trailer driven by Mr. David.
Mr Crosswhite testified that he was a truck driver; that on the morning of the accident he was riding eastward on another vehicle with Kenneth Sparks; that he saw Mrs. Rader traveling westward in the middle lane barely moving, almost to a stop; that he did not see any hand signal given by her; that the David truck was in...
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