Stanton v. Jones

• Decision Date: 10 June 1929
• Docket Number: 16564
• Citation: 19 S.W.2d 507
• Parties: STANTON et al. v. JONES.
• Court: Kansas Court of Appeals

19 S.W.2d 507

STANTON et al. v. JONES.

No. 16564

Court of Appeals of Missouri, Kansas City

June 10, 1929

Rehearing Denied July 1, 1929.

Certiorari Denied Aug. 2, 1929.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

“ Not to be officially published.”

Action by D. H. Stanton and others against R. E. Jones. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Culver, Phillip & Voorhees, of St. Joseph, for appellant.

Shultz & Owen, of St. Joseph, for respondents.

OPINION

BLAND J.

This is an action for the wrongful death of plaintiffs’ minor son. There was a verdict and judgment in favor of plaintiffs in the sum of $6,000. Defendant has appealed.

The facts show that plaintiffs’ son, W. L. Stanton, Jr., a boy of ten or eleven years of age, was killed the afternoon of Sunday, October 9th, 1927, at a curve on a paved road in Buchanan County about 4 miles north of Agency. The day was a pleasant one. The general direction of the curve in the highway was from southeast to northwest. The car upon which deceased was riding, a Chevrolet, was going northward toward St. Joseph when at a point about the center of the curve it was "sideswiped" by a Studebaker automobile being driven at the time in the opposite direction by the defendant. There were six boys in and upon the Chevrolet car. Albert Stanton, the driver of the car, was fifteen years of age. Harold Smedley, age fifteen, and Robert Clinton, the same age, were sitting with the driver on the same seat and Ben Stanton, age twelve, was seated on Smedley’s lap. Ray Clinton, age twelve and W. L. Stanton, Jr., deceased, age ten or eleven were standing on the left running board. The Chevrolet car upon which deceased was riding was proceeding at a rate of speed of from 15 to 20 miles per hour as it rounded the curve on the right-hand side of the pavement or the east side of the road.

No eyewitness testified as to the speed of defendant’s car or its position upon the road before it reached a point five or six feet from the Chevrolet. However, there was testimony that at that time it was going 25 or 30 miles per hour. Defendant did not testify. The paved portion of the road around the curve in question was 25 feet in width. There was a high bank on the east side of the curve over which persons driving automobiles in either direction around the curve could not see. The paved portion of the road did not extend to the foot of this embankment, but there was a ditch between it and the pavement. There was a slight grade in the road toward the north. There were two railings separated by a by-road at the curve in question. These railings were about 27 feet 6 inches and 27 feet 8 inches from the center of the pavement. The dirt between the paved part of the road and the fences was level with the pavement, so that a car going south could drive near to the railing and partially off of the pavement with safety.

There was evidence that standing on the west side of the pavement at the north end of the curve one could see 175 to 180 feet down the road to the south or to the south end of the curve. There was no evidence as to how far one could see standing at the left of the center of the road at the north end of the curve and looking down the road to the south.

However, there was testimony tending to show that beginning with the north end of the curve there were marks upon the pavement indicating that defendant was driving with the left wheels of his car about 3 or 4 feet east of the center of the pavement as he came into the curve. Beginning at this point and running for a distance of 100 feet there were marks upon the pavement left by the sliding of the wheels of defendant’s car for a distance of 100 feet and ending at a point 5 or 6 feet from the southwest edge of the pavement. The marks of the tires of defendant’s car showed that the car did not curve with the road, but that it went straight ahead after the wheels began to slide.

The position of the bodies of deceased and Ben Clinton, who afterwards died as a result of the collision, and a blood spot on the pavement, indicated that the collision occurred about half way around the curve and near the center of the pavement east and west or slightly to the east of the center.

From all of the foregoing testimony the jury could have inferred that as defendant came into the curve from the north his car was in the middle of the pavement; that he saw the approaching Chevrolet at that time and put on his brakes sliding 90 feet to the point of the collision; that he did not turn his car after it started to slide. There is no evidence as to the rate of speed of defendant’s car before he reached a point five or six feet from the Chevrolet, but when defendant saw it, of course, it was further away from him than 90 feet. However, he had 90 feet in which to swerve to the right.

There is no evidence as to in what distance defendant’s car could have been stopped under the circumstances, but plaintiffs claim that the collision could have been avoided had defendant turned his car slightly to the right. In this connection the evidence shows that the side of defendant’s car struck the left front fender and the hub cap of the left front wheel of the Chevrolet, bending the fender up against the hood of the car and bending the front part of the left running board. The radiator on the Chevrolet was not injured and it was driven away on its own power after the collision.

It is insisted by the defendant that his instruction in the nature of a demurrer to the evidence should have been given. In this connection defendant insists, among other things, that the evidence shows that defendant did not and could not have seen or known that deceased was in a position of peril, in time to have avoided the collision, the case having been tried and submitted to the jury upon the humanitarian theory. Defendant points out that plaintiffs’ witness, Albert Stanton, who drove the car, testified that he did not see defendant’s car approaching from the north until the cars were within 5 or 6 feet of each other; that he had the same opportunity...