Robinson v. Ross

• Decision Date: 29 February 1932
• Docket Number: No. 17368.,17368.
• Citation: 47 S.W.2d 122
• Parties: ROBINSON v. ROSS.
• Court: Missouri Court of Appeals

47 S.W.2d 122

ROBINSON v. ROSS.

No. 17368.

Kansas City Court of Appeals. Missouri.

February 29, 1932.

Error to Circuit Court, Jackson County; Ben Terte, Judge.

"Not to be officially published."

Action by Letitia Robinson against M. J. Ross, administrator. From judgment for plaintiff, defendant brings error.

Affirmed.

Harris & Koontz, of Kansas City, for plaintiff in error.

Leo Spalding, Preble Hall, and Arthur C. Popham, all of Kansas City, for defendant in error.

BLAND, J.

This is an action against the administrator of the estate of W. A. Ross, deceased, for damages for the wrongful death of plaintiff's husband. There was a verdict and judgment in favor of plaintiff in the sum of $6,500.00 and defendant has appealed.

The facts show that on December 18th, 1926, plaintiff's husband, a negro, (hereinafter called the deceased) was injured in a motor vehicle collision at the intersection of 68th street and Cleveland avenue in Kansas City. Cleveland avenue runs north and south and 68th street east and west. There is a downward grade on 68th street as it approaches the intersection in question from the west and an upward grade on Cleveland avenue as it approaches the intersection from the south. Plaintiff's evidence tends to show that the automobile (hereinafter called the car), in which or upon which plaintiff's husband was riding was proceeding northwardly upon the east side of Cleveland avenue as it approached the intersection. A truck, owned by said W. A. Ross, as it approached the intersection was proceeding upon the center of 68th street. Plaintiff's husband was riding in the back part of the car, either sitting upon the door on the west side of the car with his feet inside and facing toward the east or standing upon the running board on the west side of the car facing toward the east. There were six men in the car, all of whom were on their way home from work. The car approached the intersection at the rate of about 12 miles per hour. It arrived at the intersection first and had proceeded to a point where it was about a car's length into the intersection before the truck reached the intersection. The truck was proceeding at about 30 miles per hour. When the driver of the car saw the truck approaching, which was immediately before the collision, he swerved the car to the right or to the east. The truck, however, continued across the intersection and struck the car on its left side at or about the center of 68th street in and on the east side of the intersection. The car was knocked about 35 or 40 feet. Deceased was thrown to the pavement. The truck continued to go east on 68th street to a point about 250 feet east thereof when one of the witnesses "hollered" to the driver. The truck then stopped.

The undisputed testimony shows that there was no horn or signalling device upon the truck and at no time, either when it was approaching or proceeding across the intersection, was any warning given of its approach.

There was evidence on the part of the defendant tending to show that the truck was upon the south side of 68th street, approaching the intersection at the rate of about from 8 to 15 miles per hour and that when the driver of the truck "had started through the intersection" he looked and saw the car about 40 feet south of the intersection; that both the north and south side of 68th street were clear of traffic; that defendant's driver did not turn or attempt to turn his truck either to the right or the left, but continued straight on across the intersection without slackening his speed; that the car struck the truck on the latter's right side; that the truck stopped within 6 or 8 feet after the collision; that the truck was 18 or 20 feet long and its back was just coming out of the intersection when the collision occurred. The driver of the truck testified that at the speed he was going he could have stopped his truck within 15 feet.

It is insisted by the defendant that the court erred in refusing to give his instruction in the nature of a demurrer to the evidence. In this connection it is stated that there is no evidence showing that the death of plaintiff's husband was caused by the collision between the car in or upon which he was riding and the truck. In this connection the evidence shows that plaintiff's husband was thrown about 18 feet when the two vehicles collided; that, "Well, he just went right out on his head"; that he was carried to the southeast corner of the intersection; that deceased stated he thought his leg was broken; that a witness, not a doctor, who felt the leg thought that no bone was broken; that deceased was propped up and complained of pain and numbness in his leg, "he was holding his side and groaning"; that he was placed in the truck and taken to the street car line where he boarded the street car without assistance; that he lived about 3 blocks from the street car line and walked that distance unaided to his home; that it was down hill from the point where he alighted from the street car to his home; that when he arrived home plaintiff noticed that his right leg was stiff; that "he couldn't bend his leg, he just hopped on it"; that he was suffering from pain with his side, which was swollen; that his right side was sore and appeared to have been bruised and his right leg was bruised and swollen; that plaintiff applied hot water applications to his side; that that night he did not sleep; that plaintiff was up all night with him; that following his injuries it was difficult for deceased to breathe; that he had something he wanted to tell plaintiff but he said "he wasn't able to." "He never did get able to tell me what he wanted to"; that with the aid of two women friends during the day time and two men at night plaintiff was able to take care of deceased; that he came home injured on Friday; that on the following Monday or Tuesday one of his friends came to see him and found that he was in bed, propped up on an inverted chair; that on Wednesday, Thursday, and Friday it was necessary for plaintiff to feed deceased; that he had to use a bed pan, "he couldn't help himself at all"; that on Thursday plaintiff called Dr. Radford; that upon Friday, December 24th, he was taken to the hospital where he died on December 30th.

Dr. Radford testified that when he first saw deceased he found him confined to his bed; that he had "a bruise on the right side of his body extending from the shoulder, involving the right side, the right hip, knee and ankle. My examination also disclosed a great deal of stiffness and tenderness around the ligaments of the joints and very acute pain in the right side in the margin of the ribs under the arm." The doctor gave him "first aid" treatment by the application of adhesive plaster to his side and a sedative for the pain. The doctor testified that he found no broken bones; that he could not determine whether deceased had any puncture of the lungs; that he found no ribs torn loose; that he did not see deceased after the latter went to the hospital. The doctor testified that the bruises and injuries he found upon deceased could have been caused by the collision. Both he and Dr. Smith, the latter being in charge of the hospital where deceased died, testified that his death might and could have been caused by the collision and the injuries received therein.

The evidence shows that prior to the collision deceased was a man in good health; that he worked every day; that he was able-bodied and strong; that he had not been sick and had no trouble with his leg, his side or his chest. There is no evidence as to what caused deceased's death any more than what we have stated.

The contention that there is not sufficient evidence to show that deceased died as a result of the collision is based partly upon the claim that the doctors testified as to whether the injury received in the collision might or could have caused his death, rather than whether it actually did cause it. The testimony was neither conclusions nor speculation but was competent evidence and such that the jury had a right to consider in connection with this point. Stewart v. Am. Ry. Exp. Co. (Mo. App.) 18 S.W.(2d) 520; Nelson v. K. C. P. S. Co. (Mo. App.) 30 S.W.(2d) 1044.

The evidence shows that deceased was a strong healthy man prior to his injury and that thereafter he exhibited indications of having received a severe injury; that he gradually declined in strength and health until his death. There is no evidence or suggestion of any cause of the death of deceased, other than the injuries he received in the collision in question. Under such circumstances had there been no medical testimony whatever the jury could have found that those injuries actually caused his death. Church v. K. C. (Mo. App.) 280 S. W. 1053; Jarnagin v. Warner & Co. (Mo. App.) 18 S.W.(2d) 129, 130 and cases therein cited.

It is insisted that the court erred in permitting plaintiff's witness, Cane, to give testimony as to the speeds of the car and the truck. In this connection it is pointed out that the witness, in answer to the question whether he could form a fairly clear judgment as to the speed of moving objects, stated "Yes, fairly, but it wouldn't be altogether clear." The witness further testified, before stating the speeds of the vehicles, that he had never driven himself but that he had been riding in automobiles off and on for ten years; that he had seen street cars and other things moving for 10 or 12 years. Counsel then asked: "Do you have a general knowledge of the speed of things when you see them moving from your every day experience? A. Yes, I could have an idea." He then testified: "I don't think he (the driver of the car) was going over 10 or 12 miles an hour" and that the truck as it approached and passed over the intersection "must have been doing 25 any way." This last answer was stricken out and the witness later stated that the truck was going 25 miles per hour.

It is admitted that one may...