Smiley v. Kinney
| Decision Date | 13 May 1924 |
| Docket Number | 23590 |
| Citation | 262 S.W. 349 |
| Parties | SMILEY v. KINNEY |
| Court | Missouri Supreme Court |
Walter W. Calvin, of Kansas City (Kimbrell & Wofford, of Kansas City, of counsel), for appellant.
E. E Ball and Chas. N. Sadler, both of Kansas City, for respondent.
In Banc.
This is a suit by plaintiff to recover damages for injuries sustained by him to his person, through the collision of the motorcycle on which plaintiff was riding, with the automobile which defendant was driving. The amount sued for is $ 25,000. Upon the first trial the plaintiff had a verdict for $ 5,000. Upon appeal to the Kansas City Court of Appeals, the judgment for plaintiff was reversed and the cause remanded. Smiley v Kenney, 228 S.W. 857. Thereafter the plaintiff filed an amended petition, and upon the second trial there was unanimous verdict in favor of the defendant. The trial court sustained plaintiff's motion for a new trial, upon the ground that in the judgment of the court error had been committed in submitting to the jury instructions Nos. 7 and 12 for defendant; but the court also, at the time, expressed the opinion, and directed that the record be made to show that 'those instructions were not prejudicial, and that under the evidence the verdict was for the right party, and was abundantly sustained by the testimony.' Defendant prosecutes this appeal from the order granting a new trial.
The collision occurred at about 4:30 in the afternoon of April 9, 1919. It occurred near the intersection of Sixteenth Street by Lydia avenue, in Kansas City. Sixteenth street extends east and west, and Lydia avenue from north to south. Sixteenth street is 30 feet wide from curb to curb, and Lydia avenue is somewhat wider. The plaintiff, on a motorcycle, was proceeding east on Sixteenth street, along a line south of its center. The defendant was driving his automobile westward on Sixteenth street, and on a line north of its center. On the southwest corner of the intersection of these streets was a grocery store, fronting east on Lydia avenue. A meat wagon stood near the curb, on the south side of Sixteenth street, on the north side of and near the front end of the grocery store. The head of the horse hitched to this wagon was very near the west line of Lydia avenue. On the southeast corner of this street intersection stood a church. On the northeast corner was an apartment house, and there was also an apartment house on the northwest corner. The foregoing indicates the situation, and the fixed physical objects, as plaintiff and defendant approached this crossing. The only other object entering into the situation was moving. It was an empty coal wagon, drawn by two horses, and was being driven at a walk southward on Lydia avenue, and on the right or west side of the center.
According to plaintiff's testimony, when he was about 200 or 300 feet west of Lydia avenue, and moving at a speed of 12 or 15 miles an hour, he saw defendant's automobile at about the same distance east of Lydia avenue, approaching at about an equal speed. Neither plaintiff nor defendant intended to turn at or into Lydia avenue. Plaintiff says he intended to proceed on east, upon Sixteenth street. Defendant says he intended to proceed on west, upon Sixteenth street, after crossing Lydia avenue. There is no reason to doubt either statement. As they thus approached the crossing, the coal wagon, driven south along the west side of Lydia avenue, came upon the intersection. Plaintiff and defendant each testified that he 'slowed up.' Defendant and the driver of the coal wagon testified it had the right of way, and kept on. The defendant testifies that he, slowing up at the sight of the coal wagon entering the crossing, passed to the north of the south moving wagon. The plaintiff did not pass east of the coal wagon at all. He does not give any explanation as to when or how it passed. The plaintiff's motorcycle collided with the front, on the south, or left side, of defendant's automobile.
The contention of plaintiff, in his testimony and made by him here in argument, is that plaintiff remained south of the center of Sixteenth street, but that defendant made a semicircular movement, first southwestward, carrying his automobile south of the center of Sixteenth street and thence curved back northwestward, and that thereby plaintiff was unable to avoid the collision. Defendant's contention was and is that he (defendant) was never south of the center line of Sixteenth street, but that plaintiff rode northeastward over the center of Sixteenth street, into his automobile. There is no dispute in the testimony over the fact that after the collision the automobile was stopped within a short distance. Plaintiff's estimates vary as to the distance his motorcycle was dragged or pushed by the automobile. His greatest estimate is about 20 feet. But there is no dispute as to the fact that as the automobile stood, after and as it was stopped, it was on the north side of Sixteenth street near the curb. Plaintiff testified that when the movement ceased he lay about 5 feet from the north curb. The defendant and others testified the automobile, when stopped, was headed west, and was approximately parallel with the curb. The plaintiff himself testified that the collision occurred at a point 1 or 2 feet west of the west line of Lydia avenue.
The instructions are complained of by plaintiff; but the issue was made, and is insisted upon here by defendant, that under the pleadings and the evidence the verdict could not have been otherwise than for the defendant.
The vital and controlling issue of fact in this case is whether plaintiff, as he claims, before and up to the point of the collision, remained south of the center of Sixteenth street, but that defendant curved over from the north to the south side, or, on the contrary, whether defendant remained north of the center of the street, and that plaintiff rode northeastwardly, and north of the center line. The claim made in the brief in support of the contention that plaintiff made a case to go to the jury was as follows:
'That plaintiff, approaching the crossing, had slowed down the speed of his motorcycle; that he saw the coal wagon coming onto the intersection, and saw he could cross in front of it; that he saw the defendant enter the intersection of Lydia avenue and saw that there was ample clearance between the course of the automobile and his motorcycle, and he then looked to the south, on his right, and saw nothing, and turning his eyes again to the front, saw the automobile 6 or 8 feet in front of him, headed in a northwesterly direction, moving at about the same rate of speed as when he first noticed him, the defendant apparently having swung around in a semicircle to get around and pass ahead of the wagon.'
The difficulty in the way of this contention is that an important link in this claim of reasoning is not supported by any evidence, nor by the testimony of the plaintiff himself. The plaintiff nowhere in his testimony states that the defendant passed in front of the coal wagon or appeared to do so. Plaintiff did not so testify in either trial. To have done so would have required defendant's automobile to pass in front of the horses which drew the coal wagon south between the center of the west line of Lydia avenue, and if defendant did or could have done so, doubtless it would have been necessary for him to turn southwesterly, and then after passing the heads of the horses, turn back northwesterly. Not only did plaintiff fail to testify that defendant passed in front of the horses pulling the coal wagon, but all the affirmative evidence on that question is that the defendant's automobile passed to the north, or rear, of the coal wagon. The plaintiff testified in the second trial, and his testimony given at the first trial was read in the second trial. The plaintiff testified a number of times to a circular movement made by the automobile, and as to where it brought the automobile with reference to his own position, and the position of the meat wagon which stood by the curb on the south side of Sixteenth street and near the front end of the grocery store, as the following, given upon the first trial:
Elsewhere, and referring also to his position relative to the meat wagon, plaintiff testified in the first trial:
'
In the first trial the plaintiff testified that he saw the automobile first at some distance before he reached the crossing, but saw it again when he (plaintiff) drove out from behind the meat wagon. He then made prominent the claim that he rode up from behind the meat wagon. He then testified:
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