Marshall v. Taylor

• Citation: 153 S.W. 527
• Parties: MARSHALL v. TAYLOR.
• Decision Date: 03 February 1913
• Court: Court of Appeal of Missouri (US)

153 S.W. 527

MARSHALL v. TAYLOR.

Kansas City Court of Appeals. Missouri.

February 3, 1913.

1. MUNICIPAL CORPORATIONS (§ 706) — COLLISION WITH AUTOMOBILE — QUESTION FOR JURY.

Whether a driver of a wagon was negligent in failing to turn aside to let an automobile pass him, as required by Laws 1911, p. 327, § 8, subsec. 3, held, under the evidence, for the jury.

2. MUNICIPAL CORPORATIONS (§ 706) — COLLISION WITH AUTOMOBILE — EVIDENCE.

Evidence that a chauffeur approached a vehicle, which was running in a beaten track in the snow, from behind, and attempted to pass it though the vehicle did not turn aside, whereby a collision occurred, tends to show negligence on the part of the chauffeur.

3. MASTER AND SERVANT (§ 301) — INJURIES TO THIRD PERSON — SON AS AGENT OF FATHER.

Where an automobile was provided by a father for the use of members of his family, and an adult son was chauffeur for them, and was permitted to use the car for his own pleasure, the son was an agent of the father, though using the car for his own pleasure.

4. MASTER AND SERVANT (§ 332) — INJURIES TO THIRD PERSON — QUESTION FOR JURY.

Where, in an action for injuries from a collision with an automobile, defendant admits that the driver of the automobile was his chauffeur, this is sufficient evidence for the jury that the chauffeur was acting in the line of his employment.

5. MASTER AND SERVANT (§ 332) — INJURIES TO THIRD PERSON — QUESTION FOR JURY.

In an action for injuries from a collision with an automobile, testimony of the chauffeur that he was driving the car because he did not

wish to walk only raises an issue of fact with the evidence of plaintiff that the chauffeur was acting in the line of his employment by defendant.

6. EVIDENCE (§ 472) — OPINION EVIDENCE — FACT IN ISSUE.

In an action for injuries to a driver of a wagon in a collision with an automobile which attempted to pass the wagon from behind, a question to a witness as to whether an automobile had room to pass in safety calls for an opinion on the fact in issue, and is inadmissible.

7. APPEAL AND ERROR (§ 1050) — PREJUDICIAL ERROR — OPINION EVIDENCE.

The admission of evidence of an opinion that an automobile could have passed a wagon in safety, which was the fact in issue, is prejudicial error.

8. EVIDENCE (§ 213) — OFFER OF COMPROMISE.

Evidence that defendant's lawyer in a personal injury action invited plaintiff to come to his office, and then gave him a drink of whisky, and offered to pay him money to dismiss the case, and then took him to defendant's place of business and gave him another drink of whisky, and defendant offered him a check for $25 in full for the injury, is inadmissible because an offer of compromise.

9. TRIAL (§ 29) — CONDUCT OF JUDGE — OFFER OF EVIDENCE.

It is error for a court after objection to evidence as an offer to compromise, after hearing the nature of the evidence, out of the hearing of the jury, to permit the offer of such testimony to be again made in the hearing of the jury, and then sustain an objection thereto.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Mat Marshall against John N. Taylor. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

N. T. Gentry, of Columbia, for appellant. Stephens & Coller, of Columbia, for respondent.

JOHNSON, J.

This is an action commenced March 2, 1912, in the circuit court of Boone county for the recovery of damages plaintiff alleges he sustained in consequence of a collision between his wagon and an automobile owned by defendant. The petition alleges that the collision was due to the negligence of defendant's son, who was operating the automobile, and that plaintiff's damages resulted from personal injuries inflicted on him and from injuries to his horse, wagon, and harness. The answer, in substance, is a general denial, and a plea of contributory negligence. A trial of the cause to a jury resulted in a verdict and judgment for plaintiff, and, after his motions for a new trial and in arrest of judgment were overruled, defendant brought the case here by appeal.

Plaintiff, a negro, was driving east on Broadway, a paved street, and was approaching the intersection of Third street, when defendant's automobile, driven by his son, who was the only occupant, overtook plaintiff's wagon, and in passing collided with it. There was a deep snow on the street, but there was a well-beaten wagon path near the middle of the pavement, and plaintiff kept his horse and wagon in the beaten road, and did not attempt to turn out towards the right, though warning of the coming of the automobile was given by the sounding of the horn. Plaintiff states he did not hear the horn on account of the noises made by his wagon, and did not know of the approach of the automobile until the instant of the collision. The driver of the car, when he overtook the wagon, attempted to pass around it on the north side, and in completing the movement turned into the beaten road ahead of the wagon to avoid, so he says, a pile of stones on the north side of the pavement. He cut in too close, and the right rear wheel of the car struck the left front wheel of the wagon. Plaintiff was thrown from his seat into a pile of snow. His horse ran away, and smashed the wagon and damaged the harness.

Defendant introduced in evidence an ordinance of the city prescribing "rules of the road." This ordinance contains the provisions of paragraph 3, § 8, of an act relating to motor vehicles, passed by the Legislature in 1911. See Laws of Missouri 1911, p. 327. The rules thus prescribed are as follows: "Whenever a person operating a motor vehicle shall meet in a public highway any other person riding or driving a horse, or horses or other animals of any other vehicles, the person so operating such motor vehicle shall reasonably turn the same to the right of the center of such highway so as to pass without interference. When any such person so operating a motor vehicle shall overtake any such horse, animal or other vehicle, the rider or driver of such horse, animal or other vehicle shall, as soon as practicable, turn aside to the right so as to allow free passage on the left hand side, any such person so operating a motor vehicle shall, at the intersection of public highways, keep to the right of the intersection of the centers of such highways when turning to the right and pass to the right of such intersection when turning to the left." Counsel for defendant argue that the demurrer to the evidence asked by defendant should have been sustained on the ground that the violation of the statute and ordinance by plaintiff, which obviously was at least a contributory cause of his injury, precludes his recovery, notwithstanding the driver of the car may have been negligent in the manner in which he attempted to pass around the wagon. We think the issue of whether or not plaintiff was guilty of an infraction of these rules of the road or was negligent in not turning to the right to allow the car to go by is presented by his evidence as one of fact for the jury to determine. The inference is reasonable that his wagon, which was old and dilapidated, made a great deal of noise, which with the added noise of the wheels crunching in the snow prevented him from hearing the horn, if, in fact, it was sounded. The statute contemplates and requires the driver of the wagon not to keep looking back in anticipation of being overtaken by a motor vehicle travelling in the same direction, but to act with reasonable diligence to give free passage to such vehicle on being informed of its approach behind him. If plaintif...