Tunget v. Cook

• Decision Date: 04 May 1936
• Docket Number: No. 18379.,18379.
• Parties: TUNGET v. COOK.
• Court: Missouri Court of Appeals

94 S.W.2d 921

TUNGET v. COOK.

No. 18379.

Kansas City Court of Appeals. Missouri.

May 4, 1936.

Rehearing Denied May 25, 1936.

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

"Not to be published in State Reports."

Action by Charles Tunget against F. L. Cook. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hook & Sprinkle, of Kansas City, for appellant.

Wyman Wickersham, of Kansas City, for respondent.

BLAND, Judge.

This is an action to recover for the loss of services and consortium of plaintiff's wife due to injuries sustained by her in an automobile collision with the defendant. There was a judgment in favor of plaintiff in the sum of $2,800.00. Defendant has appealed.

The facts show that the collision occurred on October 4, 1932, on Van Horn Road at its intersection with North Claremont Street, which is a point on Van Horn Road between Independence and Kansas City; that Van Horn Road extends east and west and is paved with concrete 40 feet and 9 inches in width; that it is divided into lanes each 10 feet wide with a 9-inch painted strip running directly along the center; that North Claremont lies north of Van Horn Road and has an oiled surface 16 feet in width in its center; that it is about 35 feet wide where it comes into Van Horn Road, being wider there than its normal width as it goes north from the junction of the two roads. For convenience the four lanes of Van Horn Road beginning at the south side of the pavement and going north, were referred to at the trial as lanes one, two, three and four.

Mrs. Tunget, the wife of the plaintiff, was driving east on Van Horn Road, coming on to the same about four blocks west of North Claremont Street. It was about 1 p. m. of a clear day and the pavement was dry. She intended to proceed on to North Claremont and then to make a left-hand turn into that street. She traveled the four blocks at a rate of speed of from 15 to 20 miles per hour, driving in lane number one, the extreme right-hand lane, as one goes east on Van Horn Road. When she reached a point about 100 feet west of North Claremont Street she first saw defendant's car. At this time his car was proceeding toward the west on Van Horn Road and was 400 to 525 feet east of North Claremont. He was driving astride the line between the third and fourth lanes (which was on the right-hand side of the road going west) at a rate of speed, as estimated by plaintiff, from 50 to 55 miles per hour. She continued to watch his approach and she testified that he did not slacken his speed prior to the collision. When she was 50 feet west of North Claremont she signaled for a left-hand turn and went from lane number one to lane number two. She looked into the rear vision mirror and saw no one close behind her and put her hand out and down indicating that she was going to make a turn to her left. When she reached a point 3 or 4 feet east of the center of North Claremont she shifted her car into second gear and started to make a gradual turn into that street. At this time she was driving at a rate of speed of 4 or 5 miles per hour. During all of this time defendant's car was traveling toward the west between lanes three and four. When she started to make the turn defendant's car was 200 feet away. Realizing that defendant was traveling fast and was not slowing down she decided, when the left or north front wheel of her car got over the center line (the line between lanes 2 and 3) of the pavement, that it would be dangerous to keep on moving her car to the left so she turned her car to her right, or to the south and east, so that he could pass to the north of her. She succeeded in making a partial turn to the right going about 10 feet so that only the left rear wheel of her car was north of the center line of the pavement. However, instead of passing to the north of her, the defendant, when he was about 70 feet away, turned his car sharply to the south in order to go around plaintiff's car. This he did about the time she turned to the right and to the south. This action of defendant's resulted in the left front part of each car coming into contact with such violence that the Tunget car was turned completely around and knocked about 85 feet to the southwest.

As a part of plaintiff's case, he introduced certain statements made by the defendant in his deposition. In his deposition defendant testified that he was driving on the north side of Van Horn Road "probably just on the north line" when he first saw Mrs. Tunget's car; that at that time her car was about 200 feet west of the center line of North Claremont Street and his car was about 100 feet east of the center line of that street; that he was traveling about 35 to 40 miles per hour; that at this time Mrs. Tunget was crossing the line between lanes one and two; that "I figured, she wanted to go north, figured that she was coming over to get to the median line (the line between lanes two and three) and go on up and then she (would turn when she got up to the intersection; that was my thought"; that when her car was 50 feet west of the center of north Claremont Street he first noticed that it was crossing to the north over the line between lanes two and three, or the center line of the pavement; that the collision occurred probably 40 feet west of the center line of North Claremont Street; that he traveled straight west while she was going the 200 feet "angling across the street"; that he observed her all of the time with the exception of the time he was approaching North Claremont Street, when he looked to the north and south to see if any one was approaching from those directions; that "when I looked again which was when I reached a point about the center of North Claremont Street she was over on my side"; that the collision occurred about 15 or 16 feet west of the west line of Claremont Street; that his eyes were off of the Tunget car while he covered a space equal to about half the width of North Claremont Street; that he did not see the Tunget car turn to the south; that he turned his car to the south in order to go around the Tunget car; that when he had reached about the west line of North Claremont Street he took his foot off of the foot throttle and put his foot on the brake because "I saw that she was coming across in front of me"; that this was about 16 feet west of the point of the collision; that he slowed down when crossing North Claremont Street to about 25 to 30 miles per hour. "Q. Did you see any automobile, vehicle or person on Van Horn Road as you were approaching Claremont other than the Tunget car? A. I didn't notice any other because that was the one that was interesting me. Q. Now you say it was interesting you? A. Yes. Q. In what way did it interest you? A. Well, when you are driving along and you see something coming across the street indicating that they are going to get in front of you why that is interesting to me"; that he was about at North Claremont Street when the Tunget car began to interest him; that he did not see Mrs. Tunget put her hand out, that is, signal that she was going to turn; that going at the rate of speed of 40 miles per hour he could have stopped his car in about 20 or 30 feet; that going at the rate of speed of 25 miles per hour he could have stopped in about 15 feet.

Defendant's theory of the collision was that when he turned his car to the left to go around Mrs. Tunget's car she turned to the right and struck his car.

At the trial defendant testified that he was traveling "just about on the outer edge of the north side of the slab, probably with my wheels just over the mark between the two lanes"; that his left front wheel was approximately a foot over the line between lanes three and four; that when he first saw the Tunget car he was about 150 feet east of the center line of North Claremont Street proceeding at the rate of speed of 35 or 40 miles per hour; that the Tunget car was about the same distance west of the center line of North Claremont Street; that the Tunget car was probably in lane one; that "not a great while" after he first saw it it began to cross over into lane two and that the Tunget car entered lane two when it was about 100 feet west of North Claremont Street and "seemed to come on up a little ways in lane number two"; that "We were coming closer and closer together, and she was in that lane when I was just approaching Claremont"; that as he approached North Claremont Street he looked to the north and to the south; that before he looked in those directions the Tunget car was in lane number two; that at that time he had not seen any signal that it was going to turn; that after he looked to the right and to the left he looked west to see if the way was clear ahead of him; that at that time the Tunget car had crossed over the center line of the street, that is, the line between lanes two and three; that "She was angling pretty well across that line, her left front wheel was over the line, and the right front wheel was just about on the middle mark"; that she crossed the middle line at an angle of about 33 degrees; that at this time he was 50 or 60 feet away from the Tunget car; that when he saw the Tunget car in that situation he decided that the driver was going to cross to the Harriman office building (this is a building situated on the north side of Van Horn Road about 35 feet west of the center line of North Claremont Street); that, at that time, "We were getting closer together, and I decided that is where she was going, and I made my decision pretty quick, and turned to the left, to go around her"; that the Tunget car was about a car's length away from him when he turned to the left; that when he turned to the left "then she turned to the right"; that he at no time saw Mrs. Tunget signal that she was going to turn; that the two cars came together probably about 10 feet west of the north line of Claremont Street.

On cross-examination defendant testified...