Ritz v. Cousins Lumber Co.

• Decision Date: 03 April 1933
• Docket Number: No. 17733.,17733.
• Citation: 59 S.W.2d 1072
• Parties: LIZZIE RITZ, ALIAS LIZZIE KING, RESPONDENT, v. COUSINS LUMBER COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

59 S.W.2d 1072

LIZZIE RITZ, ALIAS LIZZIE KING, RESPONDENT, v. COUSINS LUMBER COMPANY, APPELLANT.

No. 17733.

Kansas City Court of Appeals. Missouri.

April 3, 1933.

Appeal from Circuit Court of Buchanan County. — Hon. L.A. Vories, Judge.

REVERSED AND REMANDED.

Shultz & Owen for respondent.

Stringfellow & Garvey for appellant.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $7,000 and defendant has appealed.

The facts show that plaintiff was injured on March 3, 1930, about eleven miles east of the city of St. Joseph, and while she was standing on the north side of Highway No. 36. She was struck by an automobile being operated at the time by one Roland Johnston. Plaintiff, while riding in her car with one Smith, had suffered an accident to it a night or two before the day of the happenings in question and, on that day, they had returned to the scene of the accident with Edward C. Burke, an attorney of St. Joseph, to ascertain upon which side of the road the accident had occurred. Upon arriving in the vicinity of that accident they parked plaintiff's car, a large Franklin sedan, headed toward the east on the south side and off of the paved portion of the highway, the car being located on the dirt shoulder immediately adjacent to the concrete pavement. The pavement was eighteen feet in width.

Smith and Burke alighted and walked back a distance of about seventy-five feet to the point where the accident was suppsed to have happened and were upon the north shoulder of the pavement at the time of the happenings giving rise to the collision which is the subject of this suit. Plaintiff, after remaining in the car a moment or so, alighted and started to follow them. She walked to the south of her car and had arrived at a place a short distance, possibly three or four feet, behind the same, and about the center thereof, on the dirt shoulder. She stood there facing toward the two men, when she was struck by a Dodge car being driven by said Johnston, a boy fifteen years of age. This car was occupied by Johnston and his mother. Plaintiff's car was parked upon a grade toward the east about 250 or 300 feet from the crest of a hill to the rear.

Noland Johnston testifying on behalf of defendant, stated that he was driving an old Dodge car eastward and had been following, for a mile or so prior to the collision, a Chevrolet car owned by the defendant and being driven eastward by one Wilson, its employee; that during this time he had been driving between forty and fifty to two or three hundred feet to the rear of the Chevrolet car; that when he arrived at a point about 360 feet to the west of the point of the collision with plaintiff, he had a view in front of him for a mile or more; that he did not notice plaintiff's car until he was about 250 feet from it; that at that time the Chevrolet car being driven by Wilson was probably forty or fifty feet ahead of him; that when the Chevrolet car reached a point about fifteen or twenty feet from plaintiff's car it started to slow down; that at that time the witness' car was thirty feet behind the Chevrolet, traveling at the rate of about thirty to thirty-five miles per hour; that immediately upon his seeing the Chevrolet car start to slow down he applied his brakes and turned to the left, with the idea of going around the Chevrolet car, but seeing another car approaching near from the opposite direction, he concluded that it was not safe to do this, so he swerved his car to the right "off of the pavement and noticed Mrs. King (plaintiff) standing behind her car and then swerved back to the left to avoid hitting her and ... the right bumper (of his car) struck Mrs. King ... and the left bumper of her car and the junction of the running board and the right front fender of the Chevrolet car;" that just as he struck the Franklin car (plaintiff's) his car (the Dodge) "crowded the Chevrolet car more into the middle of the highway, bounced away from the Franklin car and the Chevrolet car was crowded against mine;" that after he struck the Chevrolet car his car came to a complete stop; that at the time the Chevrolet car started to slow down it was about fifteen feet west of plaintiff's car, so that his car traveled forty-five feet, after he noticed the Chevrolet car slowing down, until it reached plaintiff's car. He further testified that his brakes were in good condition.

There was other testimony that the Chevrolet car appeared to begin to stop or slow down at a point about fifteen feet from the place where it stopped and that it made a "very sudden stop;" that it slowed down and stopped on the pavement along side of plaintiff's car; that the two cars came down the hill traveling from thirty to thirty-five miles per hour and from twenty-five to forty feet apart.

There was evidence that the Chevrolet was a new car and was equipped with four wheel brakes and a stop light; that the stop light lighted immediately upon the application of the driver's foot to the brakes; that the Dodge car was equipped with two wheel brakes and could not have been stopped in as short a distance as the Chevrolet car. The evidence shows that Wilson gave no other signal of his intention to stop save the one by the stop light. There was evidence that it required as much as forty-five to fifty feet in which to stop a car, such as this Dodge car, going at the rate of thirty to thirty-five miles per hour.

The record is not very clear as to where plaintiff was situated when the cars came over the top of the hill, but it would appear from Burke's testimony that she was then standing to the rear of the car.

Wilson was dead at the time of the trial and there was no opportunity to produce his testimony. There was no evidence as to why he made the stop in question. Plaintiff testified that "she didn't know why."

This suit at one time was pending against Roland Johnston and his mother, Mrs. G.W. Johnston, as well as the present defendant, but it was later dismissed as to the Johnstons. The amended petition, upon which the case was tried, alleges "that defendants and their agents negligently operated said automobiles in such a manner as to cause the automobiles — operated by defendants, Roland Johnston and Mrs. G.W. Johnston — to strike plaintiff and injure her; that the defendants, and their agents, saw or, by the exercise of the highest degree of care, could have seen plaintiff in a place of danger, in time, by the exercise of the highest degree of care, to have avoided striking her and injuring her, and negligently failed to do so."

The answer of the present defendant consists of a general denial.

It is insisted by the defendant that its instruction in the nature of a demurrer to the evidence should have been given:

"First, because the evidence does not show that Johnston's car could have been stopped; Second, because the evidence does not show that with any reasonable control of the Johnston car the collision could have been avoided; Third, because in any event the driver of the car ahead cannot be held negligent for failing to anticipate that the driver of the car behind would be unable to so control his car as to avoid injuring plaintiff."

In arguing this point defendant discusses the testimony given by its witness, Roland Johnston, in his deposition, which contradicts some of his testimony at the trial and defendant also points out that Roland Johnston, at the trial, stated that, when he said in his deposition that when he first came over the hill he saw the "cars 200 feet away," he testified to the truth. Defendant having put this witness on the stand, vouched for the credibility of his testimony given at the trial, but we need not go into the question of what effect that may have had upon the situation, for in any event, the jury in weighing his testimony, was entitled to take it in the most favorable light to plaintiff and to reject what he said in his deposition, even though he said at the trial that a certain statement made therein was true when made. [Bond v. R.R., 110 Mo. App. 131; Cravens v. Hunter, 87 Mo. App. 456; Bobbitt v. Railroad, 169 Mo. App. 424; McCoy v. Home Oil & Gas Co., 48 S.W. (2d) 113, 119.]

In discussing the question as to whether the Dodge car could have been stopped within the distance in which the driver thereof was required to stop after the Chevrolet or Wilson's car started to slow down, defendant further violates the rule that when this court is discussing the question of the demurrer to the evidence, only that which is most favorable to plaintiff will be considered. [See cases last cited.] There are many facts and inferences deducible therefrom, appearing in the record before us, that are in conflict with the facts as we have stated them but it would unduly prolong this opinion to go into all of the evidence, not stated, and the various inferences that might be drawn therefrom which are argued, at length, by the defendant. In view of this we have confined our statement of the facts to those that are most favorable to the plaintiff.

We need not go into the question as to whether the burden was upon plaintiff to show that the Johnston car could not have been stopped after Wilson started to slow down his car. We might say that the evidence shows that Wilson made a very sudden stop and, for the rate of speed the cars were proceeding, one that was extremely near in front of the Johnston car. This suggests a wide field that might be inquired into, but without going into a discussion of that phase of the case, it is sufficient to say that there was ample evidence tending to show that the Johnston car could not have been stopped before striking plaintiff. The testimony of the driver thereof shows that he put his foot on the brakes "as hard as he could," as soon as he saw the Chevrolet car slowing and kept his foot on them until the collision. The reasonable inference from his testimony is that his car...