West v. Duncan

• Decision Date: 16 March 1923
• Parties: ALICE WEST, Respondent, v. L. R. DUNCAN and R. R. DUNCAN, partners, doing business as INDEPENDENT TIRE COMPANY, Appellants
• Court: Missouri Court of Appeals

249 S.W. 127

215 Mo.App. 423

ALICE WEST, Respondent, v. L. R. DUNCAN and R. R. DUNCAN, partners, doing business as INDEPENDENT TIRE COMPANY, Appellants

Court of Appeals of Missouri, Springfield

March 16, 1923

Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

AFFIRMED.

Judgment affirmed.

Lincoln & Lincoln for appellants.

Sam M Wear and Patterson & Page for respondent.

FARRINGTON J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

--The defendants are partners engaged in the automobile and truck tire business. One of these partners, while engaged on company business, was driving an automobile from Bois D'Arc, a town some fifteen miles west of Springfield, to Springfield and collided with a car in which the plaintiff was riding as a guest. It is undisputed that the time was after sundown on a rainy day, and both cars had the lights turned on.

Defendants' car was traveling east and the car in which plaintiff was riding was going west. These two cars met in collision a little west of a culvert or small bridge in the road over which the car plaintiff was riding in had just passed. Both cars were damaged. Plaintiff recovered a judgment for $ 1000, and her testimony as to her injuries received in the collision amply justify the size of the verdict.

The evidence is squarely conflicting concerning the speed at which defendants' car was traveling at the time, and as to the relative position of the two cars in the road. Plaintiff's witnesses show that the car she was in had given the road and was as near the north part thereof as it could safely go and not run into the ditch, and that when the collision occurred defendants' car was north of the center of the traveled part of the road, and that it was going at a very high rate of speed. On the other hand defendants' witnesses testify that defendants' car, at the time of the collision, was running at a speed of about twelve miles per hour and that their car was clear over on the right-hand side of the road, with the wheels on the right hand side running on the rocks and grass to the right of the traveled part of the road, and that to have given any more of the road would have put their car in the ditch on the south side.

Defendants' witnesses further show that when the cars were stopped their car was partially hanging over the south ditch, while the car plaintiff was riding in was so near the center of the road that a car could have been driven around it between it and the north ditch.

We have set out sufficient evidence to show the clear conflict in the evidence, and that if plaintiff's witnesses are to be believed there was a case made. The jury is the sole arbiter to determine this issue, and having resolved it in plaintiff's favor we have no authority in law to set it aside provided we find no error in the proceedings and trial.

The first point made by appellants is that after the trial was started the court permitted plaintiff to amend her petition by interlining the words, "a twitching of the eye," in describing the injury received. A conclusive answer to this is, no mention of this was made in the motion for a new trial, and even if it had been, it is overly technical to claim that it was error when there was no attempt by defendants to dispute the extent of plaintiff's injuries and where the petition prior to this amendment did aver "that her nose was mashed, bruised and broken, and that her face became so swollen by reason of...