Schupback v. Meshevsky
| Decision Date | 07 December 1927 |
| Docket Number | 26235 |
| Citation | 300 S.W. 465 |
| Parties | SCHUPBACK v. MESHEVSKY |
| Court | Missouri Supreme Court |
R. A Brown and John E. Dolman, both of St. Joseph, for appellant.
Miles Elliott and Duvall & Boyd, all of St. Joseph, for respondent.
Action to recover damages for personal injuries suffered by plaintiff and alleged to have been caused by defendant's negligence. Plaintiff was injured about 10:30 or 11 o'clock on the evening of July 30, 1924, in a collision between two automobiles owned by defendant and an automobile owned by one Henry Kiefer, in which latter automobile plaintiff and his family were riding as guests of the owner. The collision occurred about 2 miles south of St. Joseph Mo., on a concrete paved highway, known as Victory or Memorial highway, 18 feet wide, extending from St. Joseph to Atchison, Kan. The Kiefer automobile in which plaintiff was riding was a Ford touring model and was being driven by one Earl Bogle, under the view and direction of the owner, Henry Kiefer. Plaintiff, his wife, and two daughters had been invited to accompany Kiefer and Bogle for a ride upon the highway. Bogle and Kiefer occupied the front seat of the Kiefer automobile and the family of plaintiff occupied the rear seat, plaintiff being seated upon the right side of the rear seat, his daughter, Mrs. Maddox, being seated upon the left side, and his wife being seated in the middle of the rear seat. An infant daughter was seated upon the lap of plaintiff. The highway at the place of the collision extends north and south. The Kiefer automobile in which plaintiff was riding was traveling south on the highway.
The evidence adduced by plaintiff tended to prove that the Kiefer automobile in which plaintiff was riding was proceeding southwardly upon the west, or right, side of the concrete pavement, with the right wheels of the automobile about a foot inside the west edge of the pavement and with the left wheels of the automobile about 2 or 3 feet west, or to the right, of the middle line of the pavement. Defendant's two automobiles were proceeding northwardly on the highway. Defendant was steering a Dodge touring model, which, because of having been disabled, was being towed by a Ford truck also owned by defendant and operated or driven by defendant's son, David Meshevsky. Plaintiff's witnesses testified that, when defendant's Ford truck was within 15 or 20 feet of the Kiefer automobile, the defendant's son, David Meshevksy, extended his head from the left side of the canopy or top of the Ford truck and looked backward at the Dodge automobile, which was being towed, by means of chains, some 8 or 10 feet in the rear of the Ford truck, thereby causing defendant's Ford truck to veer or swerve suddenly and sharply to the left across the middle line of the concrete pavement and to strike the hub of the left front wheel of the Kiefer automobile in which plaintiff was riding; and that defendant's Dodge automobile struck the side or the rear of the Kiefer automobile, thereby causing the Kiefer automobile to overturn upon its right side and throw plaintiff upon the concrete pavement. Plaintiff's evidence was to the effect that the Kiefer automobile was traveling at a speed of 10 to 15 miles per hour, and that defendant's automobiles were traveling at a speed of 20 miles per hour, at the time of the collision. According to plaintiff's evidence, both defendant's automobiles struck the Kiefer automobile, and the Kiefer automobile was overturned upon its right side, with the front end of the automobile pointed north, and, after the collision, the Kiefer automobile was lying upon the west side of the concrete pavement to the west of the middle line of the pavement. Witnesses testified on behalf of plaintiff that defendant's Ford truck, immediately after the collision, was standing with the front wheels of the truck extended west of the middle line of the pavement, and that defendant's Dodge automobile was 'right up against' the overturned Kiefer automobile, and that defendant's two automobiles were later pushed, or moved, over to the east side of the concrete pavement, adjacent to the fence on the east side of the highway.
The defendant's evidence tended to prove that defendant's two automobiles were traveling northwardly about 10 miles per hour immediately prior to the collision, and that the Kiefer automobile was approaching southwardly along the middle of the concrete pavement at a speed of 25 or 30 miles an hour; that defendant's two automobiles were on the east side of the concrete pavement, and that the Kiefer automobile struck the middle of the Ford truck, throwing the right side of the rear end of the Ford truck against the fence on the east side of the highway, and then veered and struck the left front fender of the Dodge automobile, throwing the right wheels of the Dodge automobile off the east edge of the concrete pavement against the fence; and that, after the collision, the overturned Kiefer automobile was lying about 10 or 15 feet south of defendant's Dodge automobile. Defendant's son, David Meschevsky, testified that he did not look backward at the Dodge automobile, which was being towed, immediately before the collision, but admitted in his testimony, on both direct and cross-examination, that he had 'looked back through the peephole' in the rear of the Ford truck about five minutes before the collision. The evidence tended to show that the length of both the Kiefer automobile and defendant's Ford truck was approximately 12 feet, and their width was 5 to 51/2 feet. The width of the concrete pavement, as heretofore stated, was 18 feet, so that the middle line of the pavement was 9 feet equidistant from the outer edges of the pavement.
At the close of all the evidence, defendant requested the court to give a peremptory instruction in the nature of a demurrer to the evidence, which peremptory instruction was refused by the trial court. The jury returned a unanimous verdict in favor of plaintiff, assessing his damages at the sum of $ 8,000, and judgment was entered thereon. After unsuccessfully moving for a new trial, defendant was allowed an appeal to this court.
The defendant-appellant assigns error in two respects only: (1) That the trial court erred in refusing to give defendant's requested peremptory instruction, directing the jury to find for defendant, for the reason that plaintiff's evidence is so contrary to, and at variance with, the undisputed physical facts as to have no probative force or effect; and (2) that the verdict of the jury is so grossly excessive as to clearly indicate passion and prejudice on the part of the jury, from which it is to be inferred that defendant was denied a fair and impartial trial by the triers of the facts.
I. It is urged by defendant that all the evidence adduced by plaintiff respecting the cause and immediate results of the collision is so at variance with human experience, with the undisputed physical facts, and with the immutable laws of physics, as to be unbelievable and to furnish no substantial foundation upon which the verdict of the jury can be legally predicated. It is argued by defendant, in substance, that plaintiff's evidence tended to show that the Kiefer automobile was approximately 12 feet in length and 51/2 feet in width, and that the width of the concrete pavement of the highway was 18 feet and the width of the west half of the pavement was but 9 feet; that the Kiefer automobile was not thrown by the force of the impact or collision from the west side of the concrete pavement, but that the Kiefer automobile was turned completely around so that the front end of the automobile was pointed north, and that the automobile was overturned upon its right side by being struck by the Dodge automobile, so that the Kiefer automobile, after the collision, was lying wholly within the west side of the pavement; and that, according to plaintiff's evidence notwithstanding the force of the impact, neither of defendant's automobiles left, or was thrown off, the concrete pavement; therefore, it is contended by defendant to be contrary to the laws of physics and wholly unbelievable that, if the automobile in which plaintiff was riding had been struck on the hub of the left front wheel by defendant's Ford truck while the Kiefer automobile was...
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