Robinson v. McVay
| Citation | 44 S.W.2d 238 |
| Decision Date | 07 December 1931 |
| Docket Number | No. 17270.,17270. |
| Parties | ROBINSON v. McVAY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Adair County; Paul Higbee, Judge.
"Not to be officially published."
Action by William Robinson against Carl McVay. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Murrell & Murrell, of Kirksville, and Ellison & Dabbs, of Kansas City, for appellant.
John C. Mills, Jr., and Mills & Jayne, all of Kirksville, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3,800.00 and defendant has appealed.
The facts show that plaintiff was injured about 8:30 p. m. of December 17th, 1930, while riding as a guest of the defendant in the latter's car. They had spent the day in looking for sheep for the purpose of buying them for the defendant. Plaintiff, on account of his knowledge of sheep, had been invited by the defendant to accompany the latter in his car. At the time of the injury they were returning home.
The car in question was a two passenger Buick Coupé. Defendant was driving and plaintiff was seated to his right. They were traveling on a smooth dirt road and had reached a point a short distance south of Green Castle. The road was somewhat hilly. For a distance of two and one-half miles prior to reaching the place of the accident defendant had been driving the car at a rate of speed of 25 to 30 miles an hour. There was no moon shining and it was dark. Plaintiff was familiar with the road but defendant was unfamiliar with it, not having been over it for a period of six years. The car was going south and approached a narrow one way steel bridge situated at the bottom of a hill. The bridge had banisters 3 or 4 feet high and a board floor 10 or 12 feet wide. The improved or traveled part of the roadway was from 18 to 20 feet in width with small ditches 5 or 6 feet deep on either side, but as the road neared the bottom of the hill the traveled part narrowed to about 16 feet in width. There was a deep ditch at the bottom of the hill which encroached upon the west side of the roadway. This ditch was 20 to 25 feet wide between the top of its banks and from 10 to 12 feet wide at the bottom and from 12 to 15 feet deep.
As defendant's car was descending toward the bridge another car going north, with headlights burning brightly, approached. The two cars passed each other about 10 or 12 feet north of the bridge. When the occupants of defendant's car saw the other car approaching it was going faster than defendant's car and was traveling in about the center of the road. The record is not clear as to whether the north-bound car slowed down. Defendant testified that he did not suppose that it did; that he turned to the right; that the bumpers of the two cars "hit slightly, hit lightly." "The cars didn't exactly hit"; that his car was not swerved by the impact but that the front end of his car immediately went over the embankment into the deep ditch that encroached upon the road upon its west side. The evidence shows that defendant's car overturned into the ditch about 4 or 5 feet from the point where it passed the north-bound car. Defendant testified that the lights of the north-bound car blinded him, beginning to affect his vision when the two cars were about 150 yards apart; that he could not see the ground in front of him where he was going and could not see the bridge nor the deep ditch. The evidence shows that neither one of the occupants of defendant's car saw the bridge or the ditch at any time.
It appears that defendant carried a policy of liability insurance with the Union Automobile Insurance Company of Los Angeles, California. Upon the voir dire examination of the jury, outside of their presence, this fact was elicited by the plaintiff, who sought to ask the jury relative as to whether or not they were employees or agents of, or stock-holders in this insurance company. The policy was taken out in a distant state and there was considerable evidence tending to show that there was little likelihood of the jury being connected with the insurance company in the manner suggested and the court refused to permit counsel for plaintiff to propound any questions of this nature to the jury. The court, however, permitted counsel for plaintiff to inquire if any member of the panel had been employed "as a claim adjuster in personal injury actions, either for individuals or insurance companies." The cause then proceeded to trial. Plaintiff took the stand and almost immediately testified, without objection, to his conclusion that defendant was the owner of the car at the time in question. After introducing all of his testimony upon the merits plaintiff called one of the attorneys for the defendant to the stand and outside of the hearing of the jury another of counsel for the defendant stated:
Thereupon, in the presence of the jury the following occurred (questions being asked by the attorney for the plaintiff):
The court, in ruling upon the objection, stated that he believed it was immaterial who owned the car, sustained the objection and instructed the jury to disregard the question but refused to discharge it.
It is contended by the defendant that the court erred in not discharging the jury under the circumstances. We think this contention must be sustained. We see no excuse in this case for the conduct of plaintiff in getting before the jury the question of insurance. Had plaintiff been attempting to prove some issue properly in the case the fact that defendant carried liability...
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