Young v. Dunlap
| Decision Date | 30 December 1916 |
| Citation | 190 S.W. 1041,195 Mo.App. 119 |
| Parties | MARY YOUNG, Respondent, v. IKE B. DUNLAP, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Frank E. Johnson, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John E Wilson, Martin J. O'Donnell and Robinson & Goodrich for appellant.
Strother & Campbell for respondent.
Plaintiff's action was instituted to recover damages for personal injury received in a collision between an automobile being driven by her husband and one being driven by defendant. She recovered judgment in the circuit court.
Defendant's first objection to the judgment is that the verdict upon which it was rendered is not supported by the evidence in the case. In passing upon that question we need only examine the evidence given in plaintiff's behalf, together with the physical facts disclosed.
That a collision occurred, at eleven o'clock at night, between the two machines at the intersection of Brush Creek Boulevard and Rock Hill Boulevard in Kansas City, while plaintiff was being driven north on Rock Hill Boulevard and defendant driving east on Brush Creek Boulevard, is not disputed. But which car was run into the other, and which party was at fault, is made a matter of sharp contest in briefs, printed and oral arguments.
Plaintiff's machine, that is, the machine in which she was being driven, was much the smaller and lighter of the two. The rubber tire on her machine was a thirty-three inch tire, while defendant's was a thirty-seven inch. Defendant on his way east was running slightly down grade from thirty-five to sixty miles per hour, while defendant's machine was going up grade at the rate of ten or twelve miles. We think the greater rate stated for the former machine was exaggerated; but it is clear that the jury were authorized to believe it was under high speed.
Plaintiff's husband first observed defendant coming east on Brush Creek when the latter was about one hundred and fifty feet away and this was as the former "was entering the street," that is, was entering into the intersection of the two streets. The collision was at the center. The streets were fifty feet in width, so that while plaintiff was running twenty-five feet to the center, defendant ran one hundred and fifty feet to the same point. When plaintiff's husband observed a collision was imminent he attempted to turn from his northern course to the north-east, which had the effect of throwing his left or west front wheel at an outward angle from the body of the car, when defendant crashed into his car dragging it near twenty feet before stopping. The right front wheel of defendant's car caught in between the left front wheel of plaintiff's and plunged over the axle, breaking down the wheel, and into the engine shield. It was so wedged into plaintiff's car that it required considerable effort to get them apart. Pieces of rubber were found in the engine shield on plaintiff's car in the track of defendant's wheel. The right foot board of defendant's car was broken by the collision and also in getting the cars apart.
The trend of a great part of defendant's suggestions and argument is to the effect that the matters stated in testimony in plaintiff's behalf for proof of her case are so incredible and unreasonable that they should not be believed. While some statements made in testimony may be exaggerated, and some comparisons may not be apt, the general evidence in support of her case is reasonable in its appearance and, if credited by a jury, would entitle her to a verdict. The question on a challenge to a plaintiff's case, should not be whether some parts of the testimony are incredible, but rather, whether the whole evidence, considered in its entirety, embraces sufficient fact to make out a case.
But the principal attack on the case, is based on the ground that the evidence in plaintiff's behalf embraces what has come to be known as "physical facts," which it is said overthrow the story of the occurrence as detailed by the witnesses in her behalf. We have carefully examined this phase of the case and find that defendant's position is not sustained by the record. The testimony for plaintiff clearly shows the conditions leading immediately to the collision and there is nothing unreasonable on the face of it. Nor is the manner of the collision itself unbelievable. As we have already stated plaintiff's husband, in the smaller car at slow speed, attempted to avoid defendant's rapidly oncoming larger car at high speed, by turning to the right, thus exposing the side of his car at an angle and defendant crashed into it by going over the front axle, crushing the front wheel and breaking into the light metal shield of the engine. It serves no purpose, after verdict, to discuss the condition of defendant's car. That was a question for the jury. The fact that a car may appear to be wrecked, does not conclusively show that it was not the offending machine in the collision. We conclude the trial court rightly held the case to be for the jury.
Very properly there were not many instructions in the case; but there was serious error in some of these. The petition charged that defendant saw, or, by the exercise of ordinary care, could have seen plaintiff and the automobile in which she was riding "in a position of peril in front of defendant's automobile in time, by the exercise of ordinary care to have stopped, or slackened the speed, or to have turned to one side," and thereby avoided the collision etc. It will be noticed that the position in which plaintiff was alleged to be and the peril in which she was charged to be, and the position in which it is alleged defendant could have seen her, are in front of his machine. Instruction No. 1 for plaintiff ignores these allegations in toto, and authorizes a finding for plaintiff if plaintiff's position was anywhere within the intersection of the streets. This is not a mere technical objection when it is remembered that the collision was in the nighttime when one might very easily see an object in his front, yet he might not be able, the situation considered, to see an object approaching from one side. The instruction should not be broader than the petition, whatever may be the scope of the evidence. [Scrivner v. Railroad, 260 Mo. 421,...
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