Smith v. Ozark Water Mills Co.

• Decision Date: 11 March 1922
• Docket Number: No. 2955.,2955.
• Citation: 238 S.W. 573
• Parties: SMITH v. OZARK WATER MILLS CO.
• Court: Missouri Court of Appeals

238 S.W. 573

SMITH v. OZARK WATER MILLS CO.

No. 2955.

Springfield Court of Appeals. Missouri.

March 11, 1922.

Appeal from Circuit Court, Stone County; Fred Stewart, Judge.

Action by F. M. Smith, administrator of the estate of Herbert Smith, deceased, against the Ozark Water Mills Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. A. Pearson and John L. McNatt, both of Joplin, for appellant.

Moore, Barrett & Moore, of Ozark, for respondent.

FARRINGTON, J.

The plaintiff, administrator in this case, obtained a judgment against the defendant, appellant, on account of the death of Herbert Smith, alleged to have been the result of defendant's negligence. It is alleged in the petition, and shown by the evidence that the deceased, Herbert Smith, was a young man about 26 years of age and lived at his father's home about a mile or so north of Ozark, Mo.; that he had contributed out of his earnings to the support of his father and mother, and was single and unmarried. He started out from Ozark one night on foot going to his home, traveling along the public road. After crossing Finley creek, over which there is a bridge, he was overtaken by a friend driving an automobile who lived several miles beyond deceased's home on the same road. He stopped and asked the deceased to ride in the car with him, but the deceased stood on the running board, and refused to take a seat in the back of the car where it was offered to him by the driver and owner of the car and by another passenger who was in the back seat. After he got on the car, the road he was traveling ran west for quite a distance, where it then turned on a curve up a long hill. The evidence shows that, while the road was about 40 feet wide, the traveled roadway was all on the west side of the road, or the outer rim of the curve going up the hill, and that the east half of the road was not in good condition for traffic. After the deceased took his stand on the running board or step of the automobile, he held a possum out in his left hand which he was taking home, and leaned or sat against the side of the car and held on by taking hold of what is known as the robe strap back of the front seat. The owner of the car, after he had gone west some distance and was coming to the turn in the road which leads up the hill, speeded up his car to where it was running something like 30 miles an hour. The car had lights on it and was well equipped with brakes and steering apparatus, so far as appears in the record before us. In going up this hill on a turn, it is shown that the lights of an automobile going west and north, such as was the one on which the deceased was riding, would not be turned for any great distance on the road it was traveling. The curve in the road would make the light shine out to the west or left of the road. The evidence tends to show that at the time at which this took place it was dark, or at least so dark that objects could not be seen far ahead in the road. The petition charges, and the evidence conclusively shows, that the defendant was operating a truck between Springfield and Ozark, and that on this night this truck was coming down the hill which the automobile the deceased was riding on was going up, and that this truck had no lights, as required by law; in fact, there was no light on it whatever. The deceased and the driver of the truck were both very familiar with the road at that place. It is further shown that the driver of this truck, who was the servant of the defendant, gave no warning by horn or otherwise that he was coming down this hill. The truck was coming down in the traveled road, which was on the right-hand side of the road, the same track in which the automobile the deceased was on was traveling up the hill. The evidence of the witnesses shows without question, that no one in the automobile on which the deceased was riding saw or could see the defendant's truck until" it had gotten very close to it; some of the witnesses put it at about 10 feet. The driver of the car on which the deceased was riding, and who was a witness for the plaintiff, gives this version:

"Right on the turn there of this hill we met a truck, and there is where the boy was thrown off. We was going this way, and my lights was on ahead of us this way. When I turned to make the turn on the hill this truck was right here. I don't know how far from me when first saw it. It was awful close to me. It looked to be right at me. It was close enough to me that when I cut the car this way (indicating) it looked like it knocked him down the road. I wouldn't say that was what happened. When I cut the car was when I saw him leave. I looked back that way, and I cut the car as quick as I could. I don't know how far I missed the truck; it was pretty close. We wasn't very far apart. The truck had no headlights. There was a couple of dash lights up on the dash. It had no lights burning at all. I heard no sound of warning of any kind. I knew nothing about it until I swung my car and my lights were turned on it, when I made the turn around why the truck was there in the road. After I turned the car, the boy that was in the car with me he got out before I could get my car dead still."

He further says:

"When I heard him speak I just set down, backed down, and turned the car. The boys put him in the car, and we taken him into town and to the doctor. I don't know how far the truck run after I turned the car. I judge it wasn't much over two lengths of the truck."

Another witness for the plaintiff, who was riding inside of the car on which the deceased was riding, gave this version:

"Mr. Estee was driving on the left-hand side of the road. That took him out toward the rim of the curve. He was traveling, I judge, about 25 miles an hour. I never saw the truck until he fell off the car. I saw him fall right in front of the truck. I didn't know what he was doing until he did. When he turned the car, it throwed me over. It looked to me Estes was about 10 feet from the truck when he started to turn, just right against us; he was going at about that rate of speed; he missed the truck. Smith fell off the car in under the truck; he hit right in front of the truck. The truck was still moving."

The petition.charges negligence in a failure to have lights burning on the truck and failing to sound any alarm or warning, by driving negligently around this curve without keeping a vigilant watch, and then attempts to plead a failure of duty under the humanitarian rule. The answer of defendant is a general denial, coupled with a plea of contributory negligence.

The assignments of error are, first, that the instruction asked by the defendant in the

nature of a demurrer to the evidence should have been sustained: First, because of the contributory negligence of the deceased; and, second, because under the last chance doctrine it shows the truck driver did not and could not see or know of deceased's peril before the driver of the truck did stop. Assignments are also made concerning the giving and refusal of instructions.

We will take up first the assignment as to plaintiff's principal instruction, because it contains manifest error and will require that this judgment be reversed. The last lines of this instruction inform the jury, if they find the issues for the plaintiff, they will "assess the damage at whatever sum you may deem proper not to exceed the sum of 87,500." We just held in the case of Wilbur Stookey, a Minor, by His Next Friend Carrie M. Stookey, v. St. Louis-San Francisco Railway Co., 236 S. W. 426, a case...