Smithers v. Barker

• Decision Date: 05 October 1936
• Docket Number: 18614
• Parties: SMITHERS v. BARKER.
• Court: Kansas Court of Appeals

97 S.W.2d 121

SMITHERS v. BARKER.

No. 18614

Court of Appeals of Missouri, Kansas City

October 5, 1936

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

“ Not to be published in State Reports.”

Suit by Charles W. Smithers against John T. Barker. From a judgment for plaintiff, defendant appeals.

Affirmed.

REYNOLDS, J., dissenting.

Certified to Supreme Court Oct. 5, 1936.

Morrison, Nugent, Wylder & Berger and Chas. C. Byers, all of Kansas City, for appellant.

Julius C. Shapiro and Robert H. Miller, both of Kansas City, for respondent.

OPINION

SPERRY, Commissioner.

This is a suit growing out of an automobile accident in which plaintiff below, respondent here, obtained judgment of $5,000 damages, and defendant, appellant herein, duly perfected appeal to this court. After verdict, the facts in evidence must be construed most favorably to respondent, and he is entitled to the benefit of any evidence offered by appellant which tends to support his theory of the case and is consistent with his own testimony. However, he cannot claim the benefit of any of appellant’s evidence which contradicts his own testimony and is at war with his own theory of the case. Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, loc. cit. 604.

The facts in evidence are set out herein with the above rule in mind, for, presumably, the jury has weighed and rejected evidence tending to disprove respondent’s case.

The case was submitted on the humanitarian theory only, on the following facts:

Respondent and one Sheldon were proceeding westward on 20th street in Kansas City, Mo., on the north side of the center line of said street, which was about 30 feet wide, stopped at the stop sign on the east side of Broadway, eased out into Broadway about 10 feet, stopped and permitted a northbound car to pass in front of them, then started up in low. Respondent changed to second and, traveling at about 8 or 10 miles per hour, and increasing his speed, proceeded westward across the center line of Broadway. The front end of his car was almost entering Twentieth street on the west side when the collision occurred. Respondent was driving, and he and his companion saw appellant’s car coming south on Broadway, astride the west rail of the double street car track, traveling at about 20 or 25 miles per hour and about 250 or 300 feet north of Twentieth street intersection, when they stopped at the safety sign some 15 feet east of the east curb of Broadway. When the second stop was made, they saw appellant’s car about 150 or 175 feet north, still proceeding at about the same rate of speed and in the same relative position as before. Respondent did not see it again until the instant before collision when it was about 12 to 15 feet north of them and between the safety buttons of the street car company and the west curb of Broadway, when he heard the screech of the brakes and rubber. Appellant saw respondent’s car when it entered Broadway and could have seen it from that point until the collision occurred for there was no traffic and it was a clear night, and he testified that he thought the car was coming on across in front of him. He testified that he could have stopped his car within 4 feet with safety to himself and property at the time and under the conditions existing and at the rate of speed at which he was traveling, which he said was less than 20 miles per hour. He saw respondent’s car in his path when the front of appellant’s car was even with the south buttons [97 S.W.2d 123]

of the Street Railway Company, 15 feet north of the north line of Twentieth street, at least 15 feet from respondent. He testified that he, at that time, applied his brakes; but it was for the jury to determine whether or not he did in fact apply them at that time. When respondent saw appellant’s car at this point, he could not extricate himself from his position of peril. Appellant could have applied his brakes and stopped his car within 4 feet and thus have avoided the accident. This is a clear case for application of the humanitarian rule. Scoggins v. Miller (Mo.App.) 80 S.W.2d 724, loc. cit. 728. This latter case holds that, since appellant joined in submitting an instruction on the humanitarian rule, very similar to appellant’s instruction H in this case, appellant is now estopped to deny that there is any substantial evidence upon which the jury could have found for respondent on the humanitarian doctrine. Holloway v. Barnes Grocer Co., 223 Mo.App. 1026, loc. cit. 1032, 15 S.W.2d 917; Wielms v. St. Louis County Gas Co. (Mo.App.) 37 S.W.2d 454, loc. cit. 457.

Appellant cites Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, as being in point here. But in that case the truck of plaintiff was proceeding at 5 miles per hour and admittedly could have been stopped at any point up to within 5 feet of the track and the accident would have been avoided. It was held that the motorman had a right, under those particular circumstances, to assume that plaintiff would stop before going on the track in front of the street car. The motorman was under no duty to stop or slacken his speed until he saw, or by the exercise of ordinary care could have seen, plaintiff either in, or about to enter into, a position of imminent peril. In the Elkin Case it was then too late for him to stop and avoid the accident. Lewis v. Met. St. Ry. Co., 181 Mo.App. 421, 168 S.W. 833, is cited. In the case here under consideration, appellant saw, or by the exercise of ordinary care could have seen, respondent in front of him when 15 feet away and could have stopped within 4 feet. He testified he knew when he saw respondent enter Broadway that he was going to come on across the street and knew at all times thereafter that he apparently intended to come across in front of him. If he had applied the brakes when his car was even with the buttons aforementioned and respondent was 15 feet distant, directly in front of him, he could have stopped and thus have avoided the collision and have had from 8 to 11 feet to spare.

Appellant testified that he gave no warning signal at any time prior to the accident, although he knew respondent was going to drive on across in front of him; he did not slow down appreciably or with a view to prevent the collision. A case under the humanitarian rule was made under any theory of the case, whether appellant’s or respondent’s. Riechers v. Mayer (Mo.App.) 28 S.W.2d 405.

But appellant says respondent cannot piece out his case with evidence of appellant, where such evidence contradicts respondent. He contends that respondent failed to prove a case because there was no evidence to show in what distance appellant could have stopped his car when traveling at 25 miles per hour, the rate estimated by respondent, and, therefore, demurrer to the evidence should have been sustained. That part of appellant’s deposition, wherein he stated he was traveling at 20 miles per hour or less, at the time of the collision, and that, at the rate he was traveling, he could have stopped within 4 feet, was introduced by respondent and read to the jury as admissions against interest. He could properly prove an element of his case in this manner. Scoggins v. Miller (Mo.App.) 80 S.W.2d 724, loc. cit. 728; Gann v. Chicago, R.I. & P. Ry. Co., 319 Mo. 216, loc. cit. 228, 6 S.W.2d 39. It is said that these two statements conflict, and therefore he cannot have the benefit of such evidence. We do not think so. In Weddle v. St. Joseph Railway, Light, Heat & Power Co., 47 S.W.2d 1098, loc. cit. 1101, it is said that "he [plaintiff] is not entitled to any such evidence that tends to contradict what plaintiff himself testifies to, unless there is something in the record to indicate that plaintiff made a mistake." Other cases are also cited. Respondent here was stating only his opinion of the rate of speed and was testifying as to the speed of appellant’s car when he saw it down the street some 175 to 250 feet . He did not state that he ever saw it from that time until it struck him, or until he heard the screech of brakes and rubber just before the crash. Appellant states the rate of speed at which he was traveling at the time of the collision, and his is the only evidence of the distance in which he could have stopped when traveling at the rate he said he was then going . The cases cited by appellant do not apply, for the facts here show that there is no conflict of evidence on this point as between respondent himself and appellant. One is not limited to one witness in proving a fact and may use more than one, including defendant, to prove such a fact, not for the purpose of impeaching his own witness but for the purpose of establishing the true facts. Rollison v. Wabash R. Co., 252 Mo. 525, 160 S.W. 994. Certainly the speed of an automobile is not ascertainable by any one person merely observing same, to such an extent that the driver of the car, who may be defendant, may not also testify as to the speed, and, although his evidence might differ from that of another, yet, as an admission against interest, it is admissible in evidence, and the jury might reasonably base a verdict thereon.

It is argued that appellant would have had only a fraction of a minute in which to act. Appellant stated that he had his foot on the brake for some distance before the accident, that he anticipated the car would go in front of him when he first saw it, and there was nothing to prevent him from seeing it long before he reached the point where he says he applied the brakes. Respondent’s car was traveling slowly and, respondent says, had stopped in the street at the time the collision had occurred. We are aware of appellant’s high character as a witness and that his testimony differed...