Young v. Dunlap

Decision Date30 December 1916
Docket NumberNo. 12034.,12034.
PartiesYOUNG v. DUNLAP.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Action by Mary Young against Ike B. Dunlap. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

John E. Wilson, Robinson & Goodrich, and Martin J. O'Donnell, all of Kansas City, for appellant. Strother & Campbell, of Kansas City, for respondent.

ELLISON, P. J.

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 11 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 33-inch tire, while defendant's was a 37-inch. Defendant on his way east was running slightly downgrade from 35 to 60 miles per hour, while plaintiff's machine was going upgrade at the rate of 10 or 12 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 150 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 50 feet in width, so that, while plaintiff was running 25 feet to the center, defendant ran 150 feet to the same point. When plaintiff's husband observed a collision was imminent, he attempted to turn from his northern course to the northeast, 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 20 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 plaintiff's wheel. The right footboard 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 become 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...

To continue reading

Request your trial
39 cases
  • Kepner v. Railroad Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 27, 1929
    ......165; 23 C.J. 40; Sharp v. Baker, 22 Tex. 306; Railroad v. Wiseman, 242 S.W. 695; In re Case, 214 N.Y. 199; Chalcraft v. Railroad, 113 Ill. 86; Young v. Dunlap, 195 Mo. App. 119; Childers v. Pickenpaugh, 118 S.W. 453; McMillan v. Ball, 177 S.W. 315; Nodaway Co. v. Williams, 199 S.W. 224; Scanlan v. ......
  • McCormick v. Lowe and Campbell Ath. Goods Co., 19664.
    • United States
    • Court of Appeal of Missouri (US)
    • September 16, 1940
    ......Home Ins. Co. of New Y. v. Savage et al., 231 Mo. App. 569, 103 S.W. (2d) 900; Smith v. East St. Louis Ry. Co., 123 S.W. (2d) 198; Baustain v. Young et al., 152 Mo. 317, 322, 323, 53 S.W. 921; Threlkeld v. Wabash Ry. Co., 68 Mo. App. 127, 136; Lynch v. M.-K.-T., 333 Mo. 89, 61 S.W. (2d) 918; 22 ...St. Louis S.F.R. Co. (Mo.), 99 S.W. (2d) 841, 843; Davidson v. St. Louis S.F.R. Co., 164 Mo. App. 701, 148 S.W. 406, 409; Young v. Dunlap, 195 Mo. App. 119, 190 S.W. 1041; Hunt v. City of St. Louis, 278 Mo. 213, 211 S.W. 673, 676; Costello v. Kansas City, 280 Mo. 576, 219 S.W. 386; ......
  • Propst v. Capital Mut. Assn., 19141.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ......Dunlap, whom the evidence shows was its secretary and general manager. She testified that the reason she went to see Mr. Dunlap was "I thought we would have ...[22 C.J., pp. 921, 922; Young v. Dunlap, 195 Mo. App. 119, 125; Bustian v. Young et al., 152 Mo. 317; Savary v. State of Nebr., 62 Nebr. 166; McGar, Admx., v. Bristol, 71 Conn. ......
  • State v. McGee, 33947.
    • United States
    • United States State Supreme Court of Missouri
    • April 25, 1935
    ......In holding error was committed in excluding photographs of an automobile, with explanations as to any change in condition, Young v. Dunlap, 195 Mo. App. 119, 125, 190 S.W. 1041, 1044(10), states: "There were some changes necessary to get the machine home, but these points of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT