Renfro v. Central Coal & Coke Co.

• Decision Date: 10 June 1929
• Citation: 19 S.W.2d 766,223 Mo.App. 1219
• Parties: BEULA ALICE RENFRO, BY, ETC., RESPONDENT, v. CENTRAL COAL & COKE COMPANY, APPELLANT. [*]
• Court: Kansas Court of Appeals

19 S.W.2d 766

223 Mo.App. 1219

BEULA ALICE RENFRO, BY, ETC., RESPONDENT, v. CENTRAL COAL & COKE COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

June 10, 1929

Appeal from the Circuit Court of Jackson County.--Hon. E. E Porterfield, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Gamble Trusty & Pugh for respondent.

Reed Holmes & Taylor for appellant.

LEE, C. Barnett, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

LEE, C.

--This is an action for damages for personal injuries. Plaintiff, a child about seven years old at the time of the accident, had her foot run over by a truck loaded with coal from defendant's coal yards, in the course of being delivered to a customer.

The action was brought against defendant alone. The petition alleged as negligence the driver's failure to maintain a reasonably sufficient lookout, to give reasonable warning, to have the truck under reasonable control, and to have the truck equipped with a warning device and sufficient brakes; violation of various city ordinances as to speed, care and appliances, and failure to give warning or to stop, slacken its speed or turn aside in time to have avoided the injury.

The answer was a general denial and a plea of contributory negligence, to which the reply was a general denial. At the trial in January, 1927, there was a verdict and judgment for plaintiff for $ 5000, from which defendant appeals to this court.

The evidence shows that defendant is a corporation owning and operating certain coal yards in Kansas City, Jackson county, Missouri. From these yards it delivers coal in its own trucks; but it appears that at times they employ outside trucks to haul coal to their customers. One John Green, the owner of two trucks, was engaged in the transfer business, with which he did "all kinds of hauling such as of trash, coal or anything people want me to do, anything like that;" that he owned and maintained his own trucks, paid for the gasoline, tires and repairs, and for his extra driver.

It appears that he had an arrangement or understanding with defendant company by which if they had any coal to be hauled by other than their own equipment, he would haul it in his trucks for a charge of $ 1 per ton.

The evidence shows that Green had been thus hauling coal for defendant for a number of years; that he would come in the morning about eight o'clock, and on an average would haul three or four or five loads a day; that when he took out a load he would be given two duplicate delivery tickets, one of which would be left with the customer, who would sign the other; that this copy was later returned by Green to the company, as the basis for his pay for the hauling; that these tickets, including those given Brown in this case, named Green as driver. It appears that Green had been laid up in the hospital; that on Sunday before leaving the hospital he told his driver Brown to take one of his trucks the next morning and go to defendant's coal yard and see if they had any hauling; and if not, to get hauling jobs wherever he could; that Brown had been doing this with Green's truck for about two weeks before the accident, coming practically every day to see if there was anything for him; that he would drive in and wait for orders, and when told to load the coal and the kind and quantity to get he would get it and take it to the place ordered. It also appeared that if the coal was sent out on a C. O. D. order Brown, the driver (following the practice of Green when himself driving), would collect it and bring the money back, and if it was not a C. O. D. delivery he would get the delivery ticket signed; that the driver would unload the coal at the customer's place; that if the delivery ticket showed that a chute was needed, the driver on starting out would take a chute from the coal yard and bring it back; that the men who came in to haul coal in their own trucks were all handled alike, and whatever requirements and orders the yard superintendent had for one he had for the others with reference to making delivery and collecting money and returning it to the company; that if one of them went out and telephoned in that the building had burned down or the people were not there the yard superintendent would, if he desired, divert it to some other place, to keep them from bringing it back to the yards. It also appeared that the truck on this occasion had tacked upon each side of it a pasteboard card of a sort which the company kept on hand at the yards for all drivers, their own as well as outsiders. It was stipulated that these cards had printed on them in large red letters the words, "Coal from the Central Coal & Coke Company." Defendant's yard superintendent, Townsend, stated that this was done so that the recipient of the coal would know where it came from.

The evidence further shows that on the day of the accident, when Brown went to the yards the yard superintendent, Townsend, recognized the truck as one of Green's, and when Brown asked him if he had anything to haul he told him, "Yes, put on this load." That when Brown came up on the scales Townsend told him where to take the coal and gave him the delivery tickets with the address on them. In performing this mission Brown drove his coal-laden truck southward on Holmes street. At the southeast corner of 14th and Holmes streets is a drug store, in which plaintiff, then about seven years of age, had purchased two cents worth of candy and left the store to go to her home at 609 East 14th street, approximately half a block west of Holmes street on the south side of 14th street. Plaintiff, who was about ten and a half years old at the time of the trial, states that when she came out of the drug store she saw a sedan coming eastward on 14th street; that she waited until she saw it was not going to turn and she then started to cross Holmes street, and had not quite reached the middle of the street when the truck ran over her without warning. Witness Baldwin, who was standing beside her on the curb, states that he saw the truck approaching from the north on the east side of Holmes street, and that he could not see the driver's hands on the wheel; that as the sedan crossed Holmes street it cut off his view of the truck; that he saw plaintiff step off the curb into the street and that at that time "the Ford sedan had pulled clear past the corner, going east on the south side of Fourteenth street, and the truck pushed right behind it;" that plaintiff was going west at the time the truck struck her and knocked her down and the front wheel ran over her left foot; that another man standing on the corner jumped out and pulled her from under the truck, between the front and hind wheels; that the truck proceeded down the street until it was brought to a stand-still about 150 feet south of the intersection.

W. E. Border, a police officer, arrived about the time that plaintiff was being taken away. He states that he then questioned the driver, who was standing in front of his truck; that the driver "said he was working for the Central Coal & Coke Company and could be found at the Roanoke yards any time that we needed him." This testimony was objected to by defendant. The evidence further shows that Brown then proceeded with his load and delivered the coal at its destination, where he unloaded it, using the company's chute, which he had brought with him, took the purchaser's receipt on one of the delivery slips, which he turned over to Green, who later collected his dollar per ton thereon from defendant company; that Green paid Brown for all the hauling done with his truck, including the one now in question; that the police telephoned Mr. Townsend, the company's yard superintendent, of the accident.

Plaintiff's mother testified that a few days after the accident a gentleman, who stated that he was from the Central Coal & Coke Company, called at her house and asked how the little girl was and whether she wanted a doctor or if she wanted her sent to a hospital. When asked what he said he would do if she wanted those things witness answered "Well, he didn't just exactly--didn't say, because I said I had a good doctor;" that that was the substance of the conversation.

Appellant assigns as error the refusal of the court to give its peremptory Instruction "B," in the nature of a demurrer to the evidence; the giving of plaintiff's instructions No. 1 and No. 2, the refusal of defendant's Instruction "K" and the admission of and refusal to strike out the testimony of the witness Border as to statements made to him by the driver Brown.

Instruction "K" was to the effect that the driver Brown was under no duty to sound any warning as he approached 14th street, or to slacken his speed, until he saw or ought to have seen that plaintiff was about to leave the sidewalk and go into the street. The evidence was that he was driving at about six or seven miles per hour on the wrong side of the street, that he drove across 14th street so close to the Ford sedan that the latter had to swerve close to the curb to avoid him, and that as he emerged from behind the sedan he bore down on and struck plaintiff while she was still east of the center of the street. The evidence was further that he had no horn, bell or warning device on his truck. There is no evidence at all that he attempted to either warn or stop, or that he assumed, or gave himself an opportunity to assume, that plaintiff would remain in a place of safety on the curb as he passed. The court was not justified in saying, as a matter of law, that he was justified in running out from behind the passing sedan, on the wrong side of the street, into a position where he could not see plaintiff until he struck her, without...