Wood v. Claussen
| Decision Date | 20 January 1948 |
| Docket Number | 27229 |
| Citation | 207 S.W.2d 802 |
| Parties | WOOD v. CLAUSSEN et ux |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Charles E. Rendlen and Rendlen, White & Rendlen, all of Hannibal, and Gaylord Wilkins, of Shelbyville, for appellants.
Lane B Henderson, of Shelbina, and Waldo Edwards and D. L. Dempsey both of Macon, for respondent.
ANDERSON
This is a suit by David B. Wood, plaintiff, against William Claussen and Anna Claussen, defendants, wherein plaintiff seeks damages for personal injuries sustained by him as a result of being struck by an automobile owned by defendants and being driven, at the time, by defendant William Claussen. Judgment was rendered for the plaintiff, and defendants appealed.
The defendants are husband and wife, who, at the time plaintiff was injured, owned by the entirety farm lands in Shelby County, and owned jointly the automobile in question. The petition alleges that at the time plaintiff was injured, William Claussen was operating said automobile in furtherance of a joint enterprise of himself and his co-defendant, Anna Claussen.
The accident occurred on Highway #15, between Shelbyville and Shelbina. Just prior to the accident, plaintiff, a schoolboy six years old, had alighted from a school bus, and, at the time he was injured was walking or running southwestwardly across the highway from behind the school bus. He was struck by defendants' car, which at the time was being driven south on said highway.
The negligence alleged in the petition and submitted to the jury was 'carelessly and negligently driving and operating said motor car southwardly along said Highway #15 at the time and place aforesaid at a dangerous and excessive rate of speed under the circumstances then and there existing. * * *'
The answer admits that 'the defendants are husband and wife and own, as tenants by the entirety, farms and farm lands in Shelby County, Missouri;' admits that the defendants owned jointly the said automobile, and that it was being driven at the time and place in question by defendant William Claussen; and admits that on the day in question the plaintiff was, or had been, a passenger in the school bus mentioned in plaintiff's petition, and that at and prior to the time of plaintiff's injuries, the bus was stopped and parked. The answer denies all of the other allegations of the petition, and alleges that the occurrence was unavoidable on the part of defendant William Claussen, and was due to the contributory negligence of the plaintiff in suddenly running out so close in front of the automobile that plaintiff collided with and ran into same.
Highway #15, a public improved road, runs southwardly from Shelbyville to Shelbina. It is a 'black top,' graveled highway, from 18 to 20 feet wide. Gravel shoulders about 2 feet wide are on either side of the bituminous 'black top,' and graded ditches are beyond and on either side of these shoulders.
The accident occurred about one-half mile south of Salt River, where an east and west dirt side road joins Highway #15 on the east at right angles. This road does not continue west of Highway #15. At this intersection, a small one-story frame three-room dwelling house, called the McKinney house, is located south of the dirt road and east of Highway #15. Immediately south of the house, within 5 or 6 feet, is a 20-foot driveway extending from the highway to the barn. In the fence in front of the house is a small yard gate. On the west side of the highway, opposite the McKinney house, are three mailboxes. They are located about 30 feet south of the south line of the dirt road, and are affixed to a post just off the traveled portion of the highway. One of these boxes was for the use of the Wood family, of which plaintiff was a member.
Plaintiff attended school in Shelbina, and on the day he was injured was a passenger on a school bus which traveled north from Shelbina over Highway #15. The bus stopped at the McKinney house to let off Doris Mettes, a pupil whose home was on the dirt road about a mile east of the McKinney house. At the same time, Winifred Wood, a sister of plaintiff, alighted from the bus and proceeded to the mailbox located on the west side of the highway. Shortly thereafter plaintiff started across the highway towards the mailbox and was hit by defendants' automobile.
Earl Kendrick, the driver of the bus, testified that he stopped the bus on the east side of the highway opposite the dirt road, with the two left wheels of the bus on the paved portion of the highway, and the rear end near the south side of the dirt road. In this position, the mailboxes were about 40 feet from the rear of the bus. After stopping, Kendrick turned and engaged in a conversation with Rena Wood, plaintiff's sister, who was in the front seat, and did not see anyone leave the bus. However, he did observe at that time an automobile approaching from the north. At the time he first noticed it, it was about a quarter of a mile away. He testified that he did not know how fast the car was traveling, but he announced to the children that a car was coming. He stated that the next thing that attracted his attention to the car was the screeching of the brakes on the car or the screaming of the children. He then looked back through the rear door of the bus and saw the defendants' car spinning around on the black top, and plaintiff rolling away from the right side of the car. He stated that the car rolled back north about a third of the way it had traveled south of the bus, and stopped on the east side of the road with its two left wheels on the black top. The plaintiff lay at the edge of the black top on the west side of the highway. The driver stated that the following day he saw blood spots on the highway near the point where plaintiff lay after the accident, and that he stepped off the distance from that point to the mailbox. It took 30 steps to cover the distance, each step being a yard.
Doris Mettes testified that she was the first person to get out of the bus when it stopped at the McKinney place. After alighting, she stood at the south end of the bus and engaged in conversation with someone on the bus. She saw Winifred Wood emerge from the bus to go across the highway to the mailbox. Thereafter she heard a dull thud. She looked around, and saw David Wood lying on the highway southwest of the bus, and south of the mailbox, and about even with the gateway into the barn lot. She also saw defendants' car at the time. It was stopped and headed north on the east side of the road about even with the gateway into the barn lot.
Winifred Wood testified that when she got out of the bus, she looked both ways on the highway, and then went to the mailbox. She opened the box and took out the mail. Then she again looked both ways for approaching traffic, and observed an automobile coming from the north. It was about a quarter of a mile away when she first saw it. She then examined the mail which she had, and the car passed her, traveling about a third of the way from the west edge of the pavement. Just after it passed, she heard the Mettes girl scream. She looked up and saw the car in a turn and coming to a stop headed north, with its two left wheels on the black top, and plaintiff lying on the west side of the road about opposite the south gate post in the driveway to the barn lot. He was south of the mailbox. The car came to a stop a little south of this gate post. She stated that she had heard McKinney say that a car was coming after she had crossed the highway.
None of plaintiff's witnesses saw plaintiff leave the bus at the time. Nor did any of plaintiff's witnesses testify as to the speed of defendants' car at or immediately prior to the accident.
Rena Wood, a sister of plaintiff, was also on the bus the day plaintiff was injured. She was sitting in the front seat facing north when the driver stopped the bus to let the Mettes girl get off. The bus driver was seated to her left. She did not see the automobile approach from the north, nor did she notice who got off the bus at the time. She heard Doris Mettes scream, and immediately turned around and looked through the rear door and saw an automobile going south. It went south a little way, faced east, and then north. She saw plaintiff's body roll from the car, and stop at a point opposite the driveway that goes into the McKinney barn lot. She stated that the car must have been 100 feet or more from the bus when it made the turn. She immediately alighted from the bus and went to where her brother Murray was holding plaintiff. On her way she picked up one of plaintiff's overshoes about 20 or 25 feet south of the bus.
Dale McWilliams testified that defendant William Claussen passed him north of the Gene Hawkins place, a little over a half mile north of the Salt River Bridge, between 3 and 4 o'clock in the afternoon of December 29, 1944. Ray Ragsdale was driving a team and wagon north on the highway at that time, and behind McWilliams was a pick-up truck which followed at a distance of 75 to 100 yards. McWilliams stated he drove his automobile 30 to 35 miles per hour, and as he got close to the team and wagon he checked the speed of his car by taking his foot off of the accelerator. At this point a car passed him from the rear. It was at his side when he first saw it, and the wagon and team were in front of him.
The foregoing testimony of McWilliams went in without any objection. McWilliams was then asked how close his car was to the team and wagon at that time. To this question defendants' counsel objected on the ground that it was immaterial. This objection was overruled, and the witness answered that the distance between his car and the team and wagon at the time Claussen came...
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