Taylor v. Sesler
| Decision Date | 21 February 1938 |
| Docket Number | No. 5887.,5887. |
| Parties | TAYLOR v. SESLER et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jasper County; Ray E. Watson, Judge.
"Not to be published in State Reports."
Action by Clyde Taylor, by his next friend, Etta M. Taylor, against Guy Sesler and others for personal injuries sustained by the minor when a bicycle which he was riding collided with defendants' taxicab. Judgment for plaintiff for $300, and defendants appeal.
Affirmed.
Dale Tourtelot, of Joplin, for appellants.
T. C. Tadlock and Grant Emerson, both of Joplin, for respondent.
This is an action for personal injuries, instituted in the circuit court of Jasper county, by Clyde Taylor, a minor, by his next friend, Etta Taylor, against Guy Sesler, Wesley Cook, and Lee Crymes, operating as the Four-O-Eight Taxicab Company.
The petition upon which the cause was tried, alleged, in substance, as follows:
That at about 10 o'clock on the _____ day of December, 1936, plaintiff was riding and operating his bicycle on the south side of Fourth street, going in an easterly direction, and while in the exercise of the highest degree of care and caution for his own safety, he approached the alley between Main and Joplin streets, on Fourth street, and was in the act of crossing same, on his bicycle, the defendant Wesley Cook, who was acting for himself and his codefendants, was running, driving, and operating a certain Four-O-Eight taxicab in a westerly direction on Fourth street, and when reaching a point opposite said alley, he was running, driving, and operating his cab at a high, reckless, and dangerous rate of speed and without sounding his horn or giving to plaintiff any warning of his intention so to do, suddenly swerved and turned his cab to the south and into said alley; and with great force and violence ran into and against plaintiff and his bicycle.
Plaintiff further alleged that the defendant at the time, while acting for himself and his codefendants, saw or by the exercise of the highest degree of care and caution could have seen plaintiff, and that he was attempting to cross the alley, in time to have slowed down or slackened the speed of his cab, so as to have prevented running into plaintiff and his bicycle, but negligently and carelessly failed to have his cab under proper control and to slow and slacken the speed thereof when attempting to turn and drive into the alley.
Plaintiff alleged that he was the absolute owner of the bicycle and that it was of the value of $35.
Plaintiff further stated that due to the careless and negligent acts and omissions of the defendants, as aforesaid, and as a direct result and proximate cause thereof, his left foot was crushed and contused, the soft tissues torn, bruised, and discolored, and his abdomen was bruised and wounded in several places, from the effects of which he suffered great pain and discomfort; that he suffered for some time from a shortness of breath caused by the injury to the diaphragm; that his nerves and nervous system were greatly shocked; that his bicycle was completely wrecked— all to his damage in the sum of $1,000.
Defendants answered by general denial and a plea of contributory negligence and alleged that the plaintiff carelessly and negligently rode and operated his bicycle along Fourth street in an easterly direction at the time and place at a fast and dangerous rate of speed, taking into consideration the weather, the condition of the pavement, and the amount of traffic; and the plaintiff carelessly and negligently failed to look to see if there was other vehicular traffic on the street or alley; and that the plaintiff carelessly and negligently rode and operated his bicycle into and against the right side of the automobile driven by defendant.
Trial was had before a jury, which resulted in a verdict for plaintiff in the sum of $300. Defendants filed their motion for a new trial, which was overruled, and defendants appeal.
The testimony of plaintiff was about as follows:
That he was sixteen years of age and was in the tenth grade in Senior High School. That he had an accident on or about the 5th day of December, 1936, on Fourth street, between Joplin and Main streets. He had been to the Gas Company's office on Fourth street and was riding his bicycle east on Fourth street going towards Main street and approaching the alley between those streets. There were cars parked along Fourth street on the south side. The alley at that point goes south from Fourth street but there is no alley north. On this alley at Fifth street is an office of the Four-O-Eight Cab Company. He was riding his bicycle east on the south side of Fourth street at the time and the taxicab was being driven west by Wesley Cook on the north side of Fourth street. When he first saw the cab it was on the north side of Fourth street and about opposite the alley; that when he saw the cab turn he stopped and the cab ran over him. The right front end of the automobile knocked him down and ran over the wheels and part of his bicycle; that both the front and back wheels of the taxicab ran over his bicycle and his feet were struck and he was knocked down and that he hit his stomach and head against the pavement. That it did not stun him right then but later had a headache and his eyes bothered him and interfered with his school work. That the condition did not exist before he was injured. His left foot was hurt and caused him to limp a couple of weeks. His nerves were affected and he could not sit still long at a time. That he was riding his bicycle at about four miles an hour when he first observed the cab, and he estimated the cab was going about fifteen to twenty miles an hour when he made the turn. He did not hear any horn or see any signal indicating that the driver of the cab was going to turn. The cab went fifteen feet beyond him before it stopped. That Fourth street is about thirty-five feet wide and the alley about twenty-five feet wide. That usually there was considerable traffic on Fourth street, but there was not that morning.
Wesley Cook, the driver of the taxicab and one of the defendants herein, testified that he was driving the cab for the Four-O-Eight Cab Company on the morning of the accident, about 8:30 o'clock, and was approaching a one-way alley between Main street and Joplin street. That he was going west on Fourth street and saw plaintiff on a bicycle, riding east on the south side of the street and quite a distance down the street. That he turned into the alley, headed south. That plaintiff apparently did not observe him, as he did not look up until he was close to his car. That plaintiff put on his brakes on his back wheel and skidded into the side of his cab, and the bicycle slid under the running board. That he, Cook, moved over to the right of his car and asked plaintiff if he was hurt, and he said, "no, but you tore up my bicycle." That he, defendant, was driving about ten to twelve miles per hour as he approached the alley. That just before he started to turn he slowed down to five or six miles an hour and put out his hand to indicate he was going to turn into the alley. That the pavement was wet that morning. The front end of his cab did not hit the bicycle; and that just as his wheels were even with the sidewalk on the edge of the alley, plaintiff put on his brakes and he saw he was going to slide into his cab and he brought it to a stop; and when plaintiff's wheel went under his automobile or cab, plaintiff fell away from the cab. That he did not believe his cab ran over him. When he first saw him he was able to get up and go on, and that he went back to the cab station and reported the accident to the police station. That plaintiff was eight or ten feet west of the alley when he put on his brakes; that plaintiff put his brakes on all at once and his bicycle skidded.
Dr. W. B. Chapman, who attended the plaintiff, testified that he treated him on the 5th of December and most of that month; that he had seen him several times at his office. When he first saw him it was about 10 o'clock in the morning. The examination showed some bruises and discolored spots on his abdomen, mainly on the left side, and he seemed short of breath. His left foot was bruised and somewhat discolored, but there were no lame symptoms. He was very nervous and somewhat shocked. He complained of a headache and felt that it would take time and rest rather than medical treatment to cure him. The skin was not broken on his abdomen, but it was discolored in one place about half as large as his hand, and it was swollen and gaseous, which condition lasted several days. That he gave him some headache medicine. That he saw him about ten days before the trial, and he still complained of his foot, head, and abdomen hurting him, but there was no external evidence of any injury at the time. He limped some on his foot at first, but there were no ligaments or muscles or tendons injured. It seemed to be more of a bruise than an injury and he found no evidence of broken bones. He did not use crutches or a cane. That none of his injuries were permanent and there were no after effects as a result of the injuries and he did not anticipate any.
Mrs. Etta M. Taylor, mother of plaintiff, testified that prior to...
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