Schaff v. Nelson

• Decision Date: 03 May 1926
• Docket Number: No. 15638.,15638.
• Citation: 285 S.W. 1036
• Parties: SCHAFF v. NELSON.
• Court: Missouri Court of Appeals

285 S.W. 1036

SCHAFF v. NELSON.

No. 15638.

Kansas City Court of Appeals. Missouri.

May 3, 1926.

Rehearing Denied July 6, 1926.

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

"Not to be officially reported."

Action by Mary Schaff against Thomas N. Nelson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Brown, Douglas & Brown, of St. Joseph, for appellant.

Miles Elliott and Duvall & Boyd, all of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3,000, and defendant has appealed.

The facts show that about 1:00 p. m. of June 3, 1924, plaintiff and her son, F. W. Nichols, and his wife and 12 year old daughter were proceeding in an automobile westward on Faraon street, and about to cross Noyes boulevard in the city of St. Joseph. Faraon street runs east and west and Noyes boulevard north and south. The four were seated in a one-seated Ford delivery truck, Nichols, the driver, was to the left, his wife next to him, and plaintiff at the end of the seat on the right. The daughter was seated on the laps of plaintiff and her mother.

Plaintiff's evidence shows that in approaching Noyes boulevard Nichols was driving at the rate of about 10 miles an hour, and was 5 or 6 feet south of the north curb of Faraon street. When he reached a point about 15 feet east of the east curb line of Noyes boulevard, he and his wife looked to the north, and saw defendant's car about 150 feet north of the intersection of the two streets. About this time an automobile, a block away, and coming from the south, sounded a horn, which attracted the attention of Nichols and his wife, and Nichols, believing that he had sufficient time to cross the intersection without out danger from defendant's car proceeded across the boulevard at the same rate of speed, without again looking to the north. After Nichols had crossed the intersection, and was west of the curb line on the west side of Noyes boulevard, defendant's car turned to the right, or to the southwest, into Faraon street, and ran into the north side of Nichols' car. The left front fender of defendant's car struck Nichols' car about midway between the front and rear ends, and directly under the seat thereof, resulting in injuries to plaintiff, including the breaking of her right arm.

The sidewalk space on the east side of the boulevard was about 8 feet in width, the boulevard was 40 feet in width, and Faraon street was 30 feet wide. Nichols did not know of the presence of defendant's car until his wife saw it a second time, when she said, "Look Daddy," and "the next moment" defendant's car crashed into the side of Nichols' car. Nichols testified that the back end of his car was about 2 feet east of the west curb line of the boulevard at the time of the collision; that he did not notice how fast defendant's car was going when he first saw it; that the collision caused the rear end of his car to be turned around to the southwest, so that when it stopped moving it was headed slightly to the northeast; that all of the spokes in the rear wheels of his car were broken; that there was a "dent in the right side of the car under the seat, the running board was smashed down, as well as the splash that goes with the running board, connected to it." The collision caused defendant's car to be turned upside down. After it stopped, defendant's car was headed to the northwest. The front end of his car was 5 or 6 feet from Nichols' car. Plaintiff, who was a woman 74 years of age, testified that she did not see defendant's automobile. "I am nearsighted and cross-eyed, and didn't look on that side." Nichols testified that his mother "can't see any distance." At the time of the collision Nichols was on his way to the courthouse, where he was engaged in serving as a juror. His wife and mother were going down town for the purpose of shopping.

Defendant testified that he approached Faraon street in a Ford touring car, containing his wife, daughter, and son, his brother-in-law's two children, and himself; that he was driving about 15 miles an hour, 2 or 3 feet to the right of the center of Noyes boule yard; that, as the front end of his car was entering Faraon street, he first saw the Nichols car, which was then on the east side of Noyes boulevard, "about in line with the sidewalk" of the boulevard, coming at a rate of speed of about 30 to 35 miles an hour; that be immediately put on his brakes, and turned his car to the right in order to permit Nichols' car to pass in front of him; that in approaching Faraon street the witness was coasting, coming down a hill; that his car had slowed down to 10 miles an hour when the collision took place; that the collision was a little west of the west line of the boulevard, and about the center of Faraon street; that his left front wheel struck Nichols' right rear wheel.

Defendant's wife testified that when she first saw the Nichols car "it was not quite at the intersecting line." At that time "we were nearing the intersection line." "It might have been a foot or two, something like that, or it might have been on the line." That the Nichols car was about 5 or 10 feet east of the intersecting line. That what she meant by interesting line was the curb line. That she saw the Nichols car "coming at such a speed, and he did not slow up," and she said, "Isn't he going to stop." That defendant put on brakes and turned diagonally toward the west.

Defendant's son, Who was riding in the rear seat, testified that he noticed the Nichols car "just before it entered the boulevard, somewhere east of the boulevard"; that at that time the front end of defendant's car was "just about the north line of Faraon," proceeding at a moderate rate of speed; that defendant turned his car to the right, and the collision occurred about the center of Faraon street on the west side of Noyes boulevard.

Defendant insists that his instruction in the nature of a demurrer to the evidence should have been given. In this connection it is contended, among other things, that Nichols was guilty of contributory negligence as a matter of law, and that he and plaintiff were engaged in a "joint enterprise," and his negligence should be imputed to her. There is no merit in this contention. In a similar case recently before us we said:

"It is insisted that the doctrine of joint journey applies in this case, and that the negligence of the driver of the Ford car should be imputed to plaintiff. Plaintiff had no ground to suspect any incompetency or to anticipate any negligence on the part of her husband, the driver of the Ford who the evidence shows was an experienced one. Whether or not there was any negligence on the part of the driver of the Ford, it is apparent that the doctrine has no application in this case. Ziegler v. United Rys. Co. [Mo. App.] 220 S. W. 1016; Burton v. [Pryor] Ryor [Mo. App.] 198 S. W. 1117; Davis v. City Light & Traction Co., 204 Mo. App. 174; Corn v. K. C., C. C. & St. Jo. Ry. Co. [Mo. Sup.] 228 S. W. 78. In the last case at 1. c. 82, the case of Tannehill v. Railroad, 279 Mo. 158, cited by the defendant, was discussed and distinguished from the facts in the Corn case which are similar to the ones in the case...