Reynolds v. Grain Belt Mills Co.

• Decision Date: 03 December 1934
• Docket Number: 17526
• Parties: FRANK J. REYNOLDS, RESPONDENT, v. GRAIN BELT MILLS CO., APPELLANT
• Court: Kansas Court of Appeals

78 S.W.2d 124

229 Mo.App. 380

FRANK J. REYNOLDS, RESPONDENT, v. GRAIN BELT MILLS CO., APPELLANT

No. 17526

Court of Appeals of Missouri, Kansas City

December 3, 1934

Appeal from the Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

AFFIRMED.

Judgment affirmed.

Stringfellow & Garvey for respondent.

Brown Douglas & Brown for appellant.

OPINION

TRIMBLE, J.

This is an appeal by defendant from a judgment finally rendered in plaintiff's favor for $ 7470.64, in a suit wherein plaintiff sued for damages sustained by reason of being struck by defendant's automobile on the streets of St. Joseph, Missouri.

The second amended petition, on which the case was tried, alleged that on August 23, 1928, about 3:35 P. M., while plaintiff, in the exercise of due care, was crossing Illinois Avenue from south to north at a point just east of Lake Avenue and about the center of Illinois Avenue he was struck by defendant's automobile proceeding west on said Illinois Avenue, and was thereby seriously and permanently injured.

That the point where he was crossing "is a point where for a long time prior to said date a large number of pedestrians had been accustomed to cross said street at all times of the day and especially between the hours of three and four o'clock in the afternoon" and the defendant knew or should have known this; that defendant carelessly and in violation of the statute, operated its motor vehicle as it approached the point where plaintiff was crossing, at a high, dangerous and unlawful rate of speed under the circumstances (it being a point where many pedestrians were in the habit of crossing), without keeping a "vigilant watch" and without giving a "warning" and without keeping the said motor vehicle under such control that it could be stopped or a collision with pedestrians who might be crossing the street could be avoided; and carelessly failed to stop or turn to one side in time to avoid running against plaintiff, but carelessly ran said motor vehicle into and upon plaintiff as aforesaid.

The said second amended petition also alleged that, at the time, plaintiff was in the employ of the St. Joseph Gas Company; that said company and its insurer have refused to bring the suit which is here instituted by plaintiff, and have relinquished and duly assigned and transferred to plaintiff all claims, rights and causes of action arising under the Workmen's Compensation Law of Missouri, which his employer, the St. Joseph Gas Company, has or might have against defendant on account of damages sustained by plaintiff as a result of said accident and injuries, and plaintiff is the owner of all such rights, claims or causes of action, and is entitled to sue therefor;

That when struck by said motor vehicle, he received "severe bruises about the head, face and body; a concussion of the brain; severe injury to the muscles, bones, tendons, nerves, and tissues of the left arm; and a severe nervous shock; and that said injuries are permanent;" that he was confined to the hospital "for a number of weeks," has been required to expend and incur obligations for large sums of money for hospital care, nursing and medicines, medical and surgical attention; has been wholly incapacitated from doing any work from the date of the accident to the date of filing the petition (December 21, 1928) and will be so incapacitated for a long time to come; and that he has been damaged in the sum of $ 15,000. Wherefore, judgment is prayed for that sum.

Defendant's answer to said petition admitted its corporate nature, and that an automobile owned and operated by it collided with plaintiff on or about the date alleged, but denied every other allegation.

The answer then alleged that plaintiff was "guilty of negligence in stepping from behind a standing street car immediately in front of or against the automobile without first having looked to ascertain whether the automobile or any other conveyance was approaching" and that such negligence contributed to cause the injuries complained of.

Thereafter on June 13, 1931, defendant filed a motion asking that the plaintiff's employer, the St. Joseph Gas Company, and its insurer, the Employer's Liability Assurance Corporation, Ltd., of London, England, be joined as parties plaintiff, alleging that the latter, at the time he claims he was injured, was an employee of said Gas Company, and it was operating under said Workmen's Compensation Act with the Assurance Company as its Insurer; and that defendant has reason to believe, and does believe, that plaintiff was paid compensation by defendant or its insurer to the amount approximately of $ 3000; that plaintiff has alleged in his petition that all causes of action "arising out of or under the Workmen's Compensation Law of Missouri, or otherwise which the said St. Joseph Gas Company had or might have against the defendant on account of damages sustained by plaintiff as the result of said accident and injuries" have been assigned to him and that he is the owner thereof; but that the defendant, sic, (plaintiff) has not filed with or made a part of his petition a copy of any such assignment; that it (defendant) has reason to believe that the said Gas Company or its insurer, "is to be reimbursed the full amount of its expenditures on plaintiff's behalf, by the plaintiff, should he recover a judgment against this defendant, and that should any such judgment be obtained by plaintiff he will have no interest therein except to the extent of any amount which might be recovered over and above the sum of Three Thousand Dollars ($ 3000);" said motion further set up that said Employer and said Insurer are necessary and proper parties to this action, in order that their interests may be determined.

The record merely shows that the above motion was overruled.

At the October Term, 1931, a trial commencing on October 26, 1931, was had, and the jury returned a verdict in favor of plaintiff for $ 8000 which, by plaintiff's voluntary remittitur, was reduced to $ 7470.64 and on this, judgment was finally rendered from which defendant took an appeal which, after many vicissitudes not necessary to reveal here, finally landed in this court.

The evidence as to the collision or accident and the resulting injuries, is, in substance, as follows:

Plaintiff testified he was twenty-eight years old and working for the St. Joseph Gas Company at the time of the accident on August 23, 1928; he was a gas fitter or pipeman, who has to be as strong in the left as in the right hand as he often has to handle two wrenches at the same time, and that on the day of, and prior to, the accident, his left arm was normal, he having had no trouble with it since he went to work as a plumber in 1918 or 1919.

On the day of the accident or injury, he was required by his employer's work to go to 320 Illinois Avenue which was close to, or in the vicinity of, the place of the accident. After he and a fellow employee had finished the work, they started across Illinois Avenue at the place where the collision occurred his associate shortly, perhaps a minute, preceding him. When plaintiff started to cross Illinois Avenue, he glanced up and down the street before he started across but saw no automobile coming from the east or west. He went as far as to the rear of a street car standing in the street, with the intention of passing behind or west of it about three or four feet; as he was in the act of making a step past it, the automobile of defendant, coming from the east on that (the north) side of the street car, "hit me in the leg." He threw up his arms to protect his face and his left arm was caught between the handles of the two doors defendant's automobile and plaintiff was jerked ten or fifteen feet down the street, in the direction defendant's automobile was going, and landed on his head. By the time he could raise his head defendant's automobile was in the middle of the intersection of Lake Street and Illinois Avenue and still going. Plaintiff never did see the automobile stop. He did not at that time care whether the automobile stopped or not, as the pain he was suffering was so great that he was glad the hospital attendants put him to sleep.

He further testified that when he walked to the center of the street and was in the rear of the standing street car, and about three or four feet to the rear of it, he "started to make the step so you could see, and was in the act of making the step." He was at this time at the rear of the street car. "Q. Had you stepped one step and put your foot on the ground?" And his reply was, "A. I was making the step and the fender hit me in the leg and I throwed up my arm to protect my face." When asked what he was doing at the time, he said: "A. As I was taking the step I was looking to see if there was any automobile coming which would run into me. And just as I started to make the step, is when I got hit." He testified it was "approximately around" twenty feet from the north rail of the street car track to the north curb on Illinois Avenue, and the body of the street car projected north over the rail "about a foot," and an automobile parked on the north curb would occupy "somewhere about six feet--between five and six feet." (The reason for, or relevancy of, this will perhaps appear later.)

He further testified he was in the hospital six weeks, the first time for two weeks and then out for four weeks and then was sent back "for skin grafts" and was in for two weeks more, and then got out again and while walking down the street he sneezed "and the artery busted in the arm and I was taken back to the hospital again" and he was in for two weeks more. At the end of five months he was finally free from the hospital, and along in January he went back to work,...