Taylor v. Kelder
| Decision Date | 12 November 1935 |
| Docket Number | No. 18307.,18307. |
| Citation | 88 S.W.2d 436 |
| Parties | IRA TAYLOR, RESPONDENT, v. C.C. KELDER, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Buchanan County. — Hon. J.V. Gaddy, Judge.
AFFIRMED.
Culver, Phillip, Kaufmann & Smith and Ronald S. Reed for respondent.
Brown, Douglas & Brown for appellant.
From an adverse judgment in the Circuit Court of Buchanan County for $5000 in favor of the plaintiff for injuries alleged to have been received by plaintiff on account of the negligence of the defendant under the humanitarian rule in the operation and management of his motor car, by reason of which he ran the same into and upon plaintiff on the intersection of Mitchell Avenue and Twenty-second Street in the city of St. Joseph, Missouri, on or about March 31, 1934, seriously and severely injuring him, the defendant prosecutes this appeal.
The petition alleges both primary negligence and negligence under the humanitarian rule. Inasmuch as the cause was submitted to the jury on the charge of negligence under the humanitarian rule only, it is necessary to set out only the allegations of the petition presenting such charge, which are as follows:
The answer of the defendant admitted that a collision occurred between plaintiff and the automobile driven by defendant but denied each and every other allegation of the petition. It presented a further plea of contributory negligence as follows:
"Further answering, the defendant states that at the time of the accident complained of plaintiff was guilty of negligence in the following respects, to-wit: that he carelessly and negligently failed to watch where he was walking and carelessly and negligently failed to take any precautions to look out for his own safety; that he carelessly and negligently stepped into the side of the defendant's automobile, so quickly and unexpectedly that the defendant was unable, in the exercise of the highest degree of care on his part, to avoid colliding with him; that the plaintiff carelessly and negligently was proceeding upon the street when he was in such physical condition that he was unable to take care of or protect himself against danger, or to look out for his own safety; and that plaintiff's negligence as above set out, contributed directly to cause the injuries sustained by him, if any."
Twenty-second Street and Mitchell Avenue are public streets in the city of St. Joseph, Missouri, intersecting each other. Twenty-second Street is an arterial highway. On the evening of March 31, 1934, at about 7:30 o'clock, the plaintiff, a man of about fifty-nine years of age, was walking east on the north side of Mitchell Avenue. Upon reaching the northwest corner of the intersection of Twenty-second Street and Mitchell Avenue, he looked north and south to see if any cars were approaching from either direction. He saw a car to the north about one block away and noticed the lights of a car coming from the south about two hundred feet away. After looking, he proceeded to cross the intersection toward the northeast corner thereof, walking in the street and not upon the sidewalk. He did not look to the south again until he reached a point about three feet west of the northeast corner of the intersection and just before he reached the northeast corner thereof. From this point, he looked and saw an automobile coming from the south right upon him, from eight to ten feet away. He attempted to lean forward and step upon the sidewalk; and, as he endeavored to do so, his right leg and hip were struck by the right fender of defendant's car with such force as to injure him seriously and severely. He heard no warning or signals from the car as it approached him. He could have seen it if he had looked in the direction from which it came, and there was nothing between him and the car to prevent the driver thereof from seeing him. In fact, the defendant testified that he did see him when defendant was quite a distance away, nearly one block south of the intersection. At the time of the accident, it was dark; but the intersection was fairly well lighted; and defendant had a clear view of it and of pedestrians thereon. The defendant testified that he was traveling at the rate of fifteen to twenty miles per hour as he approached the intersection and that, as he came upon the intersection, he sounded his horn and slowed down and traveled slowly across it. There was other evidence that he was traveling at twenty to twenty-five miles per hour.
There was evidence tending to show that the street paving was dry and that the defendant's car was in good condition for operation and use in travel. The defendant, in his testimony upon the trial, stated that, when he was quite a distance south on Twenty-second Street, he first noticed plaintiff walking across the street; that he thereupon slowed down his car; that, when plaintiff reached about the middle of Twenty-second Street, he turned back and went in the direction from which he came and got on the curb; that, about the time defendant's car got even with the curb line, plaintiff staggered back and collided with the car; that at such time his car was close to what is termed the pedestrian lane; that he undertook to turn his car toward the center of the street just before he struck the plaintiff; and that, as he came up Twenty-second Street, his car was about a car's width from the curb line on the east side of the street.
There was evidence tending to show that the defendant's car could have been stopped in from twenty-eight to thirty-two feet when traveling at twenty-five miles per hour, in eighteen to twenty feet when traveling at eighteen miles per hour, and in twenty-two to twenty-five feet when traveling at twenty miles per hour but that it would continue to roll until the brakes took effect.
Dr. Gregg Thompson, who was called to administer to the plaintiff at the hospital, found him semi-conscious, with fracture of the left wrist, contusion over the right eye and over the right front of his forehead and contusion over the chest. He had some swelling and tenderness over the right ankle, and there was evidence that the ankle had been broken. His back was hurt. He suffered serious head and other injuries and has suffered since with headaches. There was also evidence to the effect by Dr. Kearby that he received concussion of the brain in addition to numerous other injuries.
There is other evidence in the record that will be fully set out if occasion requires.
At the conclusion of plaintiff's case, the defendant...
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