Ross v. Wilson

• Decision Date: 25 May 1942
• Citation: 163 S.W.2d 342,236 Mo.App. 1178
• Parties: IRENE ROSS, RESPONDENT, v. CHANDIS WILSON, APPELLANT
• Court: Kansas Court of Appeals

163 S.W.2d 342

236 Mo.App. 1178

IRENE ROSS, RESPONDENT, v. CHANDIS WILSON, APPELLANT

Court of Appeals of Missouri, Kansas City

May 25, 1942

Rehearing Denied June 15, 1942.

Appeal from Gentry Circuit Court.--Hon. Ellis Beavers, Judge.

AFFIRMED.

Judgment affirmed.

John J Robinson, Ernst & Williams, M. J. Henderson, Thos. E. Deacy and Henderson, Deacy, Henderson & Swofford for appellant.

(1) The plaintiff and her husband were guilty of contributory negligence as a matter of law. Roberts v. Consolidated Paving & Material Co. (Mo.), 70 S.W.2d 543; Wininger v. Bennett (Mo. App.), 104 S.W.2d 413; Parkville Milling Co. v. Massman (Mo. App.), 83 S.W.2d 128; Garner v. St. Louis-San Francisco Ry. Co. (Mo.), 89 S.W.2d 947. (2) The mere fact that the operator of a motor vehicle reaches and enters an intersection prior to the entry of another automobile therein, does not itself give such operator the right to proceed across the intersection in any event. Sec. 7777, R. S. Mo. 1929, now Sec. 8385, R. S. Mo 1939; Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793; McCombs v. Ellsberry, 85 S.W.2d 135. (3) It is reversible error to give to the jury a damage instruction which permits the jury to award the alleged injured party damages not directly caused by the negligence of the defendant, and which permits the recovery of damages not sued for, and which are not lawfully recoverable by the plaintiff. Wheeler v. Breeding, 109 S.W.2d 1237. (4) Testimony to the effect that the driver of an automobile involved in an accident had never before been involved in an accident or wreck, is incompetent to establish the competency of the driver, and is not competent on the issue of the driver's exercise of the highest degree of care, or upon the issue of whether or not the defendant was guilty of negligence. Friedman v. United Ry. Co. of St. Louis (Mo.), 238 S.W. 1074. (5) The existence of a city ordinance establishing a speed limit cannot be established by proof of the fact that signs had been erected within the city limits fixing a maximum speed limit. A municipal corporation can only establish a speed limit by ordinance, and that right or authority cannot be delegated. Sec. 1663, R. S. Mo. 1929, now Sec. 1827, R. S. Mo. 1939; Brown v. Alton R. R. Co., 132 S.W.2d 713; Fred Wolferman Building Co. v. General Outdoor Adv. Co., 30 S.W.2d 157; State v. McWilliams, 74 S.W.2d 363.

Dubois & Miller and Conkling & Sprague for respondent.

(1) The court did not err in refusing defendant's Instruction B in the nature of a demurrer to the evidence. (a) The appellate court cannot consider defendant's first assignment of error, the court's refusal to give his Instruction B, for the reason that the abstract of the record does not contain all of the evidence. Stalcup v. Bolt, 234 Mo.App. 1070, 1075, and cases therein cited. (b) Plaintiff was not guilty of contributory negligence as a matter of law. Everhardt v. Garner (Mo. App.), 100 S.W.2d 71, 72. The testimony of plaintiff and of her husband in reference to positions, distances and speeds must be considered as mere estimates. Christner v. C., R. I. & P. Ry. Co., 228 Mo.App. 220, 225; Young v. Mo.-Kan-Tex. R. Co. (Mo.), 100 S.W.2d 929, 934. (2) The court did not err in giving plaintiff's Instruction 2. The instruction did submit the issue of plaintiff's contributory negligence. Wheeler v. Breeding (Mo. App.), 109 S.W.2d 1237, 1243; Stalcup v. Bolt, 234 Mo.App. 1070, 1076, and cases therein cited. (3) The court did not err in giving plaintiff's Instruction 5, on the measure of damages. Morton v. Lloyd Construction Co., 280 Mo. 360, 382; Wolfe v. Kansas City, 334 Mo. 796, 805; Geisman v. Mo. Edison Elec. Co., 173 Mo. 654, 679; Kirk v. Kansas City Terminal Ry. Co. (Mo. App.), 27 S.W.2d 739, 746; Klusman v. Harper, 221 Mo.App. 1110, 1115; Klaber v. Kansas City, 223 Mo.App. 684, 699; Wolfe v. Kansas City, 227 Mo.App. 976, 984; Kneezle v. Scott County Milling Co. (Mo. App.), 113 S.W.2d 817, 822; Kemp v. Doe Run Lead Co. (Mo. App.), 57 S.W.2d 758, 762. (c) The instruction was not erroneous in failing to limit the damages to plaintiff's automobile to the amount claimed in the petition. Secs. 1265 and 1266, R. S. Mo. 1939; Burnison v. Souders, 225 Mo.App. 1159, 1170, and cases therein cited. (4) The court did not err in admitting the testimony of plaintiff and of her husband that prior to night of the accident plaintiff's husband had never had an automobile wreck. Frank v. Wright, 140 Tenn. 535, 205 S.W. 434, 435. (5) The court did not err in admitting testimony that the city of Stanberry had posted signs showing a speed limit of twenty-five miles per hour. Buffum v. F. W. Woolworth Co., 221 Mo.App. 345, 352, and cases therein cited; Pfeiffer v. Schee (Mo. App.), 107 S.W.2d 170, 173; Hartley v. McKee (Mo. App.), 86 S.W.2d 359, 365.

OPINION

SHAIN, P. J.

This is an appeal from a judgment of $ 3000 recovered by plaintiff below for personal injuries and other loss occasioned by the alleged negligence of defendant in causing an automobile which he was driving to collide with the automobile of plaintiff. At the trial the case was submitted to the jury in behalf of plaintiff on the issue of the defendant's negligence in driving at a high and excessive rate of speed under the circumstances, and in failing to yield the right of way. Instructions given at the request of defendant submitted the issues of plaintiff's contributory negligence and that of her driver in failing to yield the right of way, in failing to keep a lookout, in failing to have her automobile under control, and in driving at a high and dangerous rate of speed.

This cause was argued and submitted and an opinion by BOYER, C., was handed down at the January, 1942, Call of this court. Thereafter a rehearing was granted and cause submitted again at the April, 1942, Call of this court.

Upon a reconsideration we reach the same conclusion as before, and adopted the opinion by BOYER, C., as handed down January 5, 1942. with the exception of paragraphs reviewing assignment of error as to plaintiff's Instruction No. 5.

The first point urged by appellant is that the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence for the reason that plaintiff and her husband, who was driving the automobile at the time of plaintiff's injury, were guilty of contributory negligence as a matter of law. The facts will be stated with this assignment in view.

The collision occurred near midnight at the intersection of Main Street and Alanthus Avenue in the City of Stanberry, July 16, 1938. Main Street is an east and west paved thoroughfare thirty feet in width, and Alanthus Avenue, north of Main Street, is also a paved thoroughfare thirty feet in width to the point of intersection with Main Street at right angles. State Highway No. 169 entering Stanberry from the east is over Main Street westwardly to the intersection, and thence northerly over Alanthus Avenue. The intersection of these two streets is thirty feet square, practically level, and at the bottom of a gradual slope of both streets for approximately one block, the descending slope of Alanthus Avenue being of a greater degree than that of Main Street. There were highway slow signs posted on each street about one block from the intersection, and the City of Stanberry had erected signs limiting speed to twenty-five miles.

Plaintiff and her husband resided in Stanberry, and at the time of the collision they were on their way home from Cameron, Missouri, where they had attended a political meeting. Plaintiff owned a Ford automobile which her husband was driving. They were proceeding westwardly on Main Street intending to drive across Alanthus Avenue and continue westwardly on Main Street. While crossing the intersection and when plaintiff's car was about twenty-seven feet in the intersection and near the west side thereof, it was struck in the right side by an automobile driven by defendant from the north down Alanthus Avenue, and thrown ninety or more feet from the point of collision where it landed upside down on the east side of Alanthus Avenue, south of Main Street.

Plaintiff and other witnesses testified to the facts above recited. Plaintiff further stated that in approaching the intersection the speed of her car had been reduced to twenty-five miles per hour one block east of the intersection, and about the time they were just entering the intersection she saw the lights of defendant's car up the hill on Alanthus Avenue about the distance of a city block; she could not tell exactly where the car was nor how fast it was going; at that time it did not appear to her that there was any danger of a collision, and that her car proceeded straight across the intersection at a speed of twenty-five miles or less. She estimated that defendant's car was being driven at the rate of 60 miles per hour and said it came like a flash, and that she could tell it was going awful fast, and that it did not slow up any from the time she saw it, until the time of the collision.

On cross-examination, she stated that she and her husband were just entering the intersection when she saw the lights of the other car, and that she might have seen the lights through a driveway of a filling station when she was five or ten feet from the intersection.

Plaintiff's husband testified that he was driving the car in which they were riding on the right-hand side of Main Street and within three or four feet from the curb while approaching the intersection, and at a rate of about twenty or twenty-five miles per hour; that he saw the lights of the other car on Alanthus Avenue when the car he was driving was ten or twelve feet in the intersection; that the other car appeared to be at the top of...