Venters v. Bunnell et al.

• Decision Date: 03 March 1936
• Docket Number: No. 5544.,5544.
• Citation: 93 S.W.2d 70
• Parties: IDA VENTERS, RESPONDENT, v. B.E. BUNNELL AND O.S. LANHAM, APPELLANTS.
• Court: Missouri Court of Appeals

93 S.W.2d 70

IDA VENTERS, RESPONDENT, v. B.E. BUNNELL AND O.S. LANHAM, APPELLANTS.

No. 5544.

Springfield Court of Appeals. Missouri.

March 3, 1936.

Rehearing denied. April 15, 1936.

Appeal from the Circuit Court of New Madrid County. — Hon. John E. Duncan, Judge.

AFFIRMED.

E.L. McClintock for appellants.

John H. Bradley for respondent.

BAILEY, J.

This is an action by the widow of John Venters, deceased, to recover damages for his death resulting from personal injuries received when he was struck by an automobile of defendant B.E. Bunnell and being driven at the time by his employee, and codefendant, one O.S. Lanham. By her petition, plaintiff alleges several grounds of negligence, but since the case was submitted solely upon the pleaded humanitarian or last clear chance doctrine, no further reference to the pleadings is necessary.

The trial court's action in refusing defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case and again at the close of the whole case is assigned as error. This assignment necessitates a review of the evidence, and of course, that means the evidence most favorable to plaintiff, respondent here.

John Venters, deceased, and plaintiff, had their home about one mile and a half east of Kennett, Missouri. At the time of his death deceased was fifty-seven years of age, an able bodied man in full possession of his faculties. Defendant B.E. Bunnell is a contractor living at Cape Girardeau, Missouri, and at the time of the accident had in his employ one O.S. Lanham, also a defendant. On the 11th day of November, 1933, Lem Akers, who also lived east of Kennett, was driving in his wagon loaded with wood and being pulled by a span of mules, and was travelling in a westerly direction toward Kennett on the main highway between that city and Hayti. Mr. Akers, just prior to the accident, had "met up with" deceased Venters on the highway and invited him to ride on the loaded wagon. Deceased accepted the invitation and rode about a quarter of a mile before he got off at the time and place of the accident.

Mr. Akers, who was a witness for plaintiff, testified in part as follows:

"He was sitting on the left hand side of the wagon, midway of the wagon, sitting on the poles; that is the south side of the wagon. I was in front driving the mules in an ordinary walk; it was a sunshiny day, between one and two o'clock. There is a tree on west of where Venters was struck, on the south side of the road, also a telephone pole west of the tree. Where I was driving the road is concrete and on the south side the road is gravel, and south of the gravel is a dirt shoulder, and then a ditch which had a slight slope but was about filled up, and no fence on the south side. The ditch has been re-dug and a new bridge put in about a month ago. I would judge the gravel part of the road is about twelve, fifteen or sixteen feet wide and the dirt shoulder about three feet; it is about six feet on this sloping place to the ditch. Mr. Venters didn't jump off the wagon, he just stepped off. I saw Mr. Lanham's car coming east from the west on the gravel part of the highway at twenty-five to thirty miles an hour, to the best of my judgment. He was driving a Model A Ford; no one was with him. I would say Mr. Lanham and his car was about one hundred feet away when Venters stepped off the wagon. I didn't hear any horn on Lanham's car. I could not tell that the car slowed down. I didn't see the car turn to the right or left. I was looking at the car. When Venters was struck he was about eight or ten feet behind my wagon, as I was moving. Venters was about four feet south of the concrete when the car hit him. He was knocked or carried about fifteen feet from where the car struck him to where I picked him up. There was nothing that I know of to the right of where Venters was hit to prevent the car being turned to the right. The only way to get in there from the highway was to cross the ditch; the bridge was not in condition to drive over but there was a roadway seven or eight feet east of the bridge to cross the ditch. I picked Venters up and his leg was broken, his hands mashed and face bruised, and we took him to town. There was nobody present but Mr. Venters, Mr. Lanham, myself and my boy, nine years old. After Lanham's car struck defendant he drove down the road a piece and turned around and put him in the car and took him to Kennett to the doctor's office."

On cross-examination Akers gave it as his opinion that, considering the distance the car was from the wagon at the time Venters got off, and considering the speed of the car, it would not have been possible to have stopped the car, but qualified this conclusion by the statement, "unless he had awfully good brakes." On redirect examination he testified that he believed a Ford automobile, Model A, equipped with good brakes, running twenty-five miles to thirty per hour, could be stopped within one hundred feet.

John Noble testified that he measured the highway at the place of the accident and found that the concrete was nine feet wide, the gravel seventeen feet wide and from the edge of gravel to dirt shoulder it was sixteen feet. He further testified, over defendant's objection, that he made a test on this same road with a Model A Ford, 1929 Model, equipped with reasonably good brakes and in loose gravel, and that the car could be stopped in fifty feet. Russell Venters testified to the same effect.

For defendants, O.S. Lanham, the driver of the car, gave testimony indicating that he did all he could to stop the car after he saw deceased; that deceased jumped right in front of the car when the car was twenty-five or thirty feet from him; that deceased first started across and then turned back. He further testified:

"I had fairly good brakes on the car and would have avoided the collision if it had been possible to do so. I applied the brakes just as soon as I saw him in the road. I think I went twenty or twenty-five feet the other side of where I hit him before I stopped. I went about fifty or sixty feet after I applied the brakes. I was traveling at that time about thirty or thirty-five miles an hour. On that road, with the brakes I had, and at the rate of speed I was going, I don't think I could have stopped any sooner than I did."

Defendant argues the demurrer should have been sustained because Akers, plaintiff's chief witness, although he testified the car was 100 feet away, yet he failed to testify that the car was 100 feet away from Venters at the time he stepped off the car; that the only direct evidence as to the distance the car was from Venters came from defendant's witness Lanham, which evidence indicated that the car was but twenty-five or thirty feet from Venters when he stepped off the wagon; that, therefore, considering the evidence that the car was travelling at the rate of twenty-five or thirty miles per hour, the driver of the car had less than one second in which to act after the peril arose, which as a matter of law was insufficient time. A number of railroad cases are cited in support of this theory, among them being the leading case of Rollinson v. Railroad, 252 Mo. 525. But the trouble with defenda...