Salmon v. Neipp

• Decision Date: 04 December 1922
• Docket Number: No. 14492.,14492.
• Parties: SALMON v. NEIPP.
• Court: Missouri Court of Appeals

246 S.W. 636

SALMON v. NEIPP.

No. 14492.

Kansas City Court of Appeals. Missouri.

December 4, 1922.

Rehearing Denied January 8, 1923.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Morton Salmon, by next friend, against Chris Neipp. Judgment for plaintiff, and defendant appeals. Reversed.

Vinton Pike, of St. Joseph, and Mosman, Rogers & Buzard, of Kansas City, for appellant.

O. B. Shultz and Leonard Johnson, both of St. Joseph, for respondent.

ARNOLD, J.

This is an action for damages for personal injuries alleged to have been received by plaintiff when a collision occurred between defendant's automobile, driven by a chauffeur, and a bicycle ridden by plaintiff, at the intersection of Thirteenth and Church streets in St. Joseph, Mo., on March 4, 1921.

Plaintiff, a boy then 17 years of age, on the day of the accident, had been visiting a friend, and had borrowed his bicycle to ride home. After leaving his friend's home at about 6 o'clock p. m., he rode south on Thirteenth street, and as he reached Church street, the accident occurred. The evidence shows that Thirteenth street runs north and south, and Church street east and west; that there is a sharp descending grade in Thirteenth street for a considerable distance north of the Church street intersection. Plaintiff was riding at a speed estimated at 12 to 15 miles per hour, and as he started down the hill he saw a delivery truck standing near the curb, about 6 feet south of the south line of Church street. He also saw defendant's car coming up Thirteenth street, and saw it swerve to the left in passing the truck. Thirteenth street, at this point, is shown to be 17 feet from curb to curb. The testimony further shows that there was not room for the bicycle to pass between the automobile and the west curb, and the collision was the result.

The left handle bar of the bicycle which plaintiff was riding struck the left headlight of the automobile, Plaintiff was thrown from his bicycle, receiving injuries to his forehead, left eye, left knee, left leg and ankle, left shoulder, and neck, and sustained a severe nervous shock. The petition charges that defendant through his agent—

"carelessly and negligently and without using any care to watch for persons on said street, negligently and without using any care to control said automobile and prevent it from running against and upon plaintiff, negligently and without giving any signal to the plaintiff of the approach of said automobile, and negligently and without using any care to slow down and stop said automobile and to prevent injuring plaintiff, negligently and suddenly turned said automobile across Thirteenth street at such an angle as to suddenly block the passageway of plaintiff, while traveling along said street, and that by reason of the grade of Thirteenth street over which plaintiff was traveling being down hill, and by reason of the negligent and sudden turning of said automobile across Thirteenth street at such an angle as to block the plaintiff's passage, and by reason of all other acts of negligence heretofore stated, plaintiff' was caused to collide with defendant's automobile and was injured.

"Plaintiff states further that defendant, through his "agent, negligently turned said automobile suddenly across Thirteenth street, so as to block the same and prevent plaintiff's passage, and so as to cause plaintiff to run into said automobile, when the defendant, through his agent, at all times knew, or by the exercise of ordinary care could have known, of plaintiff's position of peril, and that he was oblivious to the same in time to have avoided said accident."

The answer is a general denial. The cause was tried to a jury on October 29, 1921, resulting in a verdict and judgment for plaintiff in the sum of $1,560. Motion for new trial was duly filed, and on Dec. 1, 1921, a remittitur was made by plaintiff of $750. Judgment was entered of record, and on the same day said motion for new trial was overruled. Defendant appeals, and for his first assignment of error charges the court erred in refusing to give the peremptory instruction asked by him, for the reason that the driver of the automobile, at the time of the occurrence in question, was not acting within the scope of his employment.

The testimony on behalf of defendant tends to show that the chauffeur had been in the employ of defendant for about four years prior to the date of the alleged injury, and that on the day in question he had driven defendant in the afternoon and had returned him to his hotel between 5 and 6 o'clock p. m. On this point defendant testified as follows:

"Q. And what did you tell him? A. I told him was through with him, and to take the machine to the garage; was through with him.

"Q. And it was his duty, was it, or not, at the close of each day when he was driving the car when he got through with his work to put the car in the garage? * * * A. Yes."

On this point Adams, the chauffeur, testified that he had taken defendant and his family out for a ride that afternoon, and had delivered them at their hotel at the corner of Fifth and Francis streets; that he left the hotel with the car about 6 o'clock, or a little after, and went to the garage, where the car was regularly kept; that on leaving the hotel the defendant told him that they were through with the car for the night; that the car was kept at the Interstate Garage, at Eighth and Sylvanie streets, which is about five blocks south and three blocks east from the hotel; that the intersection of Thirteenth and Church streets where the accident occurred is northeast of the hotel; that the garage is not in a direct line from the hotel to the chauffeur's home, which is at No. 1211 Church street. Further, the witness stated that on leaving the hotel he went to the garage, got out of the car, went to...