Stevens v. Westport Laundry Co.
| Decision Date | 28 February 1930 |
| Docket Number | No. 16474.,16474. |
| Citation | 25 S.W.2d 491 |
| Parties | JOSEPHINE STEVENS, ADMINISTRATRIX, ALICE A. CHASE, RESPONDENT, v. WESTPORT LAUNDRY COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County. — Hon. A. Stanford Lyon, Judge.
AFFIRMED.
B.W. Boley and John D. Wendorff for respondent.
Cowgill & Popham for appellant.
Action for damages on account of personal injury. Plaintiff, Alice A. Chase, sued defendant, Westport Laundry Company and others, and recovered judgment from which the laundry company appeals. Pending appeal plaintiff died and the cause was revived in the name of her administratrix.
The petition upon which the case was tried charges that plaintiff was injured on the 8th day of January, 1924, at the intersection of Forest avenue and Thirtieth street, highways in Kansas City, Missouri; that she was riding in an automobile at said place which was struck by another automobile operated by the defendants and their agent in a negligent manner. The specific acts of negligence are alleged to be that, the defendants operated the automobile in question in violation of an ordinance of Kansas City, Missouri, regulating the rate of speed at street intersections, a part of which reads as follows:
"Provided, however, that in passing any street intersection, crossing or crosswalk within the limits of Kansas City, Missouri, the rate of speed for driving shall not exceed ten (10) miles per hour when any person or vehicle is upon said intersection, crossing or crosswalk with whom or with which there is or may be danger of collision."
Plaintiff alleges that she was in the intersection of Forest avenue and Thirtieth street and while so there defendants, thru their agent, operated and ran their automobile into said intersection at a rate of speed in excess of ten miles per hour, and against the automobile in which plaintiff was riding; that defendants negligently failed to give any warning of their approach by horn or otherwise, notwithstanding plaintiff was in the travel portion of the street and in full view of defendant; that defendants negligently failed to keep their automobile under such control that same could be readily stopped; that defendants negligently ran and operated their automobile in a southerly direction on Forest avenue, being at the time of the accident on the east portion of said Forest avenue.
Plaintiff further alleges liability of defendants under the humanitarian rule in the following language:
"That defendants saw, or by the exercise of ordinary care could have seen, plaintiff in a position of imminent peril in time, by the exercise of ordinary care, to have slackened the speed of their automobile or stopped it or turned it aside and avoided colliding with plaintiff and the consequent injury, but that defendants carelessly and negligently failed so to do."
It was charged that by reason of the foregoing careless and negligent acts of defendants, their agent, servant and employee, plaintiff sustained injury. Physical injuries were alleged and also a profound nervous shock, and that plaintiff was rendered totally helpless and a confirmed invalid.
The answer was a general denial, and a plea of contributory negligence on the part of the plaintiff in that she was at said time occupying an automobile driven by her daughter-in-law at a high speed, when she knew or could have known that the driver was incompetent and without sufficient experience to operate said car; that said car was driven at an excessive speed, without any warning, into said street intersection, without protest by plaintiff; that plaintiff and the driver were in joint control of said car, on a joint mission, and are chargeable with the negligence and contributory negligence of each other, and that their acts and omissions were contributing causes to the injury; that plaintiff was further guilty of contributory negligence in that she failed to warn the driver of said car of her high rate of speed, in failing to request the driver to reduce the speed, and in failing to warn the driver not to attempt to cross the street intersection when she saw, or could have seen, that there was another car upon said intersection, and to warn the driver of said traffic; that plaintiff was guilty of contributory negligence in engaging said driver in conversation and thereby diverting her attention from the observance of the course which said car was pursuing and the traffic on the streets.
The evidence tended to show that Thirtieth street, running east and west, and Forest avenue, running north and south, intersect at right angles; that on the 8th day of January, 1924, plaintiff was riding in a Ford automobile which was being driven east on Thirtieth street by her daughter-in-law; that when they approached Forest avenue the speed of the car in which they were riding was about ten miles per hour, and just as it entered Forest avenue it was slowed down to about five miles per hour, for another vehicle to pass, and they started on across the intersection; at that time the truck of defendant was seen by the driver about the width of the street north and about thirty feet north of the north line of Thirtieth street; when the car in which they were riding was across the center of Forest avenue and near the southeast corner of the intersection, the truck which had been seen approaching from the north struck this car at or near the left rear wheel and fender. The impact mashed the back fender, sprung the axle and made a big dent in the body of the Chase car. The truck approaching from the north was on the east side of Forest avenue. The accident occurred in the afternoon of a bright day and the pavement was dry. The automobile in which plaintiff was riding was owned by her son, and driven by her son's wife, for a drive, and to take plaintiff home from a visit to her doctor. The roadway of Thirtieth street was about twenty-four feet wide; this truck was about thirty feet north of Thirtieth street when seen by the driver. The driver proceeded across the intersection on the south side of Thirtieth street, and the front wheels of the car were "right at the curb" on the east side of Forest avenue when it was struck. It was knocked off the street, over into the parking on the south side of Thirtieth street east of Forest avenue, and caused to lunge and hit a tree about forty-five or fifty feet east of the curb line of Forest avenue, and appellant's truck, after the collision, turned and ran east on the south side of Thirtieth street and stopped opposite it. The driver of the truck said: "Lady, I didn't see you — the sun was shining on the windshield."
The driver of defendant's truck testified that he saw the driver of the car in which plaintiff was riding approach at a high rate of speed, and not looking where she was going; that she was talking to another lady and was not looking in his direction, and that he thought she would look up and see him; that he was going six or seven miles per hour when he entered the intersection and could have stopped the truck at any time, and the only reason that he did not stop was that he thought the driver of the other car would look around and see him, and stop that car and give him the right of way; that when he did stop he stopped immediately; that he could have stopped the car if he had known that she was going to continue in her conversation with the other lady and not look to see whether anyone was coming from the north; that there was nothing to indicate she was going to do anything more than drive straight across the street.
The driver of the car in which plaintiff was riding testified that she looked both ways upon the street when entering the intersection for traffic. Plaintiff testified that she looked north on Forest avenue as they drove into Forest. She did not notice much in the street and if there had been any number of vehicles there she would have noticed; that she does not think that she saw the truck until it hit. On cross-examination she testified that she had confidence in the driver; that she left the direction to the driver; that she could drive, all right; that she did not leave her safety entirely to the driver; that she trusted the driving to the driver because witness was not driving; that she did not know any reason why she should have looked more than she had; that her eyesight and hearing were good; that she looked north on Forest as they drove onto that street.
As a result of the collision, plaintiff was thrown against the windshield, her nose and face were bruised and cut; her hand and wrist cut; her knees bruised, and she sustained and suffered nervous shock. She was removed to a doctor's office where her wounds were dressed and then taken to her home. The evidence shows that she was bruised; her face black and blue; both eyes swollen about shut, and she could hardly see; her face was cut and she suffered intense pain; "she was up and down, could not stay in bed; so nervous." A doctor visited her every day for seven days; that she was not out of the house until March 22nd; between March 22nd and May 6th, she was taken in an automobile to a doctor's office about every day for eleven days and treated. After May 6, 1924, plaintiff was never out of her house. She was excessively nervous and complained of pain; by June she was down in bed. The doctor visited her at her home and treated her two or three times a week until January 17, 1927. At the time of the trial, March 21, 1927, she was helpless and had to be lifted in and out of bed. At the time of her injury she was seventy-three years of age, and prior to that time was able to go in and out any place she pleased; go to picture shows; do housework, wash the dishes, do laundry, work in the yard, walk about the neighborhood and visit as others did; she was never able to go around by herself after her injury.
Further reference to the evidence pertinent to the points under...
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