Sloan v. Farmer

• Decision Date: 03 February 1943
• Docket Number: No. 6413.,6413.
• Citation: 168 S.W.2d 467
• Parties: SLOAN v. FARMER.
• Court: Missouri Court of Appeals

168 S.W.2d 467

SLOAN v. FARMER.

No. 6413.

Springfield Court of Appeals. Missouri.

February 3, 1943.

Rehearing Denied February 17, 1943.

Appeal from Circuit Court, Mississippi County; James C. McDowell, Judge.

"Not to be published in State Reports."

Action by Evelyn Sloan against Leo Farmer to recover for injuries sustained in an automobile collision. Judgment for the plaintiff and the defendant appeals.

Judgment affirmed.

R. F. Baynes and Harry H. Bock, both of New Madrid, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

SMITH, Judge.

This cause of action originated in the Circuit Court of Pemiscot County and went on a change of venue to the Circuit Court of Mississippi County, where it was tried to a jury on June 22, 1942, resulting in a verdict and judgment in favor of plaintiff in the sum of $5,000.

The amended petition, upon which trial was had, alleged that on or about the 30th day of November, 1941, the plaintiff was riding as a guest in a Chevrolet automobile, owned and driven by her husband, L. R. Sloan, along United States Highway 61 in a southerly direction through Pemiscot County, Missouri; that said highway is constructed of concrete eighteen feet in width and is a much traveled highway by motor vehicles.

The petition alleged that the defendant, appellant here, was operating a motor truck upon said highway, driving the same in a southerly direction, and that plaintiff's husband was behind and approaching said truck and intended and undertook to pass said truck upon the left hand side of said truck, and that her husband, before attempting to pass said truck, gave warning signals of his intentions to pass, and that as the said automobile in which plaintiff was riding as a guest was about to pass said motor truck, the driver of the truck, without giving any warnings or signals, suddenly turned the motor truck to the left on said highway and drove said truck directly and immediately in front of the automobile in which plaintiff was riding with the apparent intention of driving the truck upon a cross road, which intersected said Highway 61, and that the defendant at the time negligently failed to go beyond the center of the intersection of the two highways before turning to the left, and thereby caused the automobile in which plaintiff was riding to collide with the motor truck operated by the defendant, and caused the injuries to the plaintiff.

We quote the remainder of the petition as follows:

"Plaintiff further states that it was the duty of the defendant as the operator of said motor truck to exercise the highest degree of care, and that the collision between the automobile in which she was riding as a guest and the motor truck operated by the defendant was directly and proximately caused by the negligence on the part of the defendant while so running and operating said motor truck as aforesaid, at the time and place aforesaid, in the following particulars:

"(1) That the defendant failed to exercise the highest degree of care in driving said motor truck so as to prevent injuries to persons and vehicles on said highway, including the plaintiff herein, and in failing to exercise the highest degree of care to have said motor truck at said time and place under control.

"(2) That the defendant negligently and carelessly failed and omitted to give any warning signal of his intention to turn to the left at said intersection.

"(3) That the defendant negligently failed to go beyond the center of the intersection of said two highways before turning to the left, and negligently and without any warning whatever turned to the left and on the left hand half of said highway immediately in front and in the path of the automobile in which plaintiff was riding, thereby causing the collision of the said motor vehicles and the injuries to the plaintiff hereinafter described.

"(4) That the defendant before turning the truck to the left saw or could have seen the automobile in which plaintiff was riding, and that the plaintiff was at said time in a position of imminent peril, but the defendant negligently failed to look or to see the approaching automobile, and as a direct result of said negligence the said truck was turned to the left and immediately in front of and in the path of said approaching automobile, thereby causing the collision of said vehicles and the injuries to the plaintiff as hereinafter set out.

"(5) That as the automobile in which plaintiff was riding approached and intended to pass the automobile truck driven by the defendant, the driver of said automobile signaled his intention to pass said truck on the left hand side thereof, and notwithstanding said signal so given by the driver of said automobile, the defendant carelessly and negligently failed to heed same and negligently turned said automobile truck to the left and thereby caused the collision of said motor vehicles.

"Plaintiff further states that by reason of each and all of the negligent acts and omissions above set out, the automobile in which plaintiff was riding struck the motor truck driven by the defendant with great force and violence, thereby causing plaintiff to be thrown with great force and violence against parts of said automobile in which she was riding as a guest, and other objects, causing her to receive numerous injuries, bruises, cuts and sprains over her body, all due to and caused by the negligent acts and omissions of defendant as aforesaid, and which said injuries were as follows:

"That plaintiff's right foot, ankle and leg below the knee joint and the bones, tissue, ligaments, muscles and blood vessels thereof were injured, mashed, cut, bruised, contused, and the bones dislocated, broken and fractured, thereby causing permanent injuries to plaintiff, and greatly impairing the use of her right leg, and causing stiffness and impairment of the ankle and foot; that there were other cuts, bruises and contusions on plaintiff's legs and on other parts of the body; that by reason of said collision and injuries the plaintiff received a severe shock and impairment of her nerves and nervous system which are permanent in their nature, and that all the injuries herein described are permanent, and that by reason thereof she was confined to her bed and home for a long period of time, and as a direct result thereof she has suffered and will in the future continue to suffer pain and mental anguish and that by reason of all said injuries she has been damaged in the sum of $10,000.

"Wherefore, plaintiff prays judgment against the defendant for her damages as aforesaid in the sum of $10,000.00 and for the costs of this action."

There was no complaint made as to the amended petition, and the following answer, caption and signature omitted, was filed:

"Now on this day comes the defendant, and for his answer to plaintiff's first amended petition, filed in this cause, denies fully each and every allegation, statement or averment in said petition contained and prays to be dismissed with his cost.

"For further answer to plaintiff's petition, defendant states that the injuries, if any, and damages, if any, complained of in plaintiff's petition were the direct and proximate results of the negligence of the plaintiff and of L. R. Sloan, the driver of the automobile in which plaintiff was riding at the time of the alleged injuries in the particular, as herein stated, to-wit:

"(1) That contrary to the statutes of the State of Missouri, the said L. R. Sloan drove his automobile at a high excessive and dangerous rate of speed, endangering the lives and property of other persons, including plaintiff, and that in so doing he failed to exercise the highest degree of that care as required of him by law.

"(2) That the said L. R. Sloan failed to operate his automobile as nearly as practicable, on the right side of the road on which he was driving, contrary to the statutes of this state.

"(3) That the said L. R. Sloan, contrary to the statutes of this state, requiring him to exercise the highest degree of care, failed to watch the road carefully and failed to keep a watch-out for vehicles and other objects in front, to the side or rear of said automobile.

"(4) That the said L. R. Sloan negligently and carelessly, failed to keep the automobile in which he and the plaintiff were riding under control and under which control as it would enable him to stop upon the approach of danger.

"(5) That the said L. R. Sloan attempted to pass a motor vehicle driven by defendant at an intersection of another highway.

"(6) That the said L. R. Sloan attempted to pass a vehicle operated by defendant without giving any warning or indication or of any intentions of doing so, which was carelessness and negligence, and without the use of the high degree of care on the part of L. R. Sloan.

"(7) That the said L. R. Sloan carelessly and negligently and without the use of the highest degree of care, drove the car in which the plaintiff was riding directly into and against the car being driven by the defendant.

"(8) That the said L. R. Sloan negligently and carelessly operated a motor vehicle at the time and place alleged in plaintiff's petition without adequate brakes.

"Defendant further states that the plaintiff was careless and negligent in this to-wit:

"That she was riding with the said L. R. Sloan as hereinbefore set out and that she saw, or by the exercise of ordinary care for her own safety, could have seen that he was guilty of negligence as aforesaid, and it was her duty to warn the said L. R. Sloan of his carelessness and negligence as aforesaid, and to protect herself against negligence and carelessness on his part but defendant charges and avers.

"That the...