198 S.W. 437 (Mo.App. 1917), Lowry v. Smith

Citation198 S.W. 437, 199 Mo.App. 163
Opinion JudgeBRADLEY, J.
Party NameFREDERICK LOWRY, Respondent v. H. M. SMITH, Appellant
AttorneyW. H. Horine and Warren L. White for appellant. F. T. Stockard and Hamilin & Hamlin for respondent.
Judge PanelBRADLEY, J. Sturgis, P. J., and Farrington, J., concur.
Case DateNovember 13, 1917
CourtCourt of Appeals of Missouri

Page 437

198 S.W. 437 (Mo.App. 1917)

199 Mo.App. 163

FREDERICK LOWRY, Respondent

v.

H. M. SMITH, Appellant

Court of Appeals of Missouri, Springfield

November 13, 1917

Appeal from Circuit Court of Greene County.--Hon. Arch A. Johnson, Judge.

Cause reversed and remanded. (with directions.)

W. H. Horine and Warren L. White for appellant.

F. T. Stockard and Hamilin & Hamlin for respondent.

BRADLEY, J. Sturgis, P. J., and Farrington, J., concur.

OPINION

[199 Mo.App. 164] BRADLEY, J.

This is an action for damages for injuries received by the plaintiff about two o'clock in the afternoon on the 29th day of October, 1915, by being struck by appellant's automobile. The petition is not set out in full in the abstract, but the only acts of negligence charged are that defendant came along on South Campbell street in the city of Springfield at a high, reckless and dangerous rate of speed with his large and powerful automobile, and without warning, carelessly and negligently ran said automobile against, upon and over plaintiff. The material facts disclosed in the record are: That the plaintiff was walking north on the east side of South Campbell street, and [199 Mo.App. 165] was about ten or twelve feet north of what is called Traffic alley which approaches South Campbell street from the east. South Campbell street at the place where plaintiff was injured is one of the main business thoroughfares of the city of Springfield, and Traffic alley is also used as a public street and upon it there is considerable traffic. When plaintiff had crossed Traffic alley and was about ten or twelve feet north of where it connects with South Campbell street he decided that he would go across the street to speak to or to see a person on the west side. He testified that he looked up and down South Campbell street and saw no approaching vehicle except a water wagon; that he waited for the water wagon to pass and then stepped off the sidewalk from the east side of South Campbell street and started across the street, and had taken only two or three steps into the street when he was struck. The defendant driving his car on the right hand side or east side of the street was approaching from the south, having come into South Campbell street some seven hundred feet south of where plaintiff was injured. South Campbell street at the place where plaintiff was injured is paved with concrete, and had been dusty, but had been just recently sprinkled which made it slippery, "soapy" as the defendant expressed it. The street is a little down grade to the north where plaintiff was injured. The speed of defendant's automobile was placed all the way from six to thirty miles an hour. Defendant did not sound his horn because he did not have time, after he saw plaintiff's peril, but "hollered" at plaintiff, and veered his car to the west, and it skidded around, and the right hind fender struck plaintiff and knocked him down in the street, and when the car stopped, it was at right angles with the street about ten or twelve feet north of Traffic alley, with the back end and thereof near the curb on the east side of South Campbell street. Other facts material to the issues will be mentioned in the course of this opinion.

[199 Mo.App. 166] The answer was a general denial and a plea of contributory negligence. The issues were submitted to a jury under correct instructions, and a verdict returned for the

Page 438

defendant. Plaintiff in due time filed his motion for a new trial, which motion was by the court sustained, and a new trial granted; and from this action of the trial court in granting plaintiff a new trial defendant has appealed to this court. The record does not disclose upon what theory the learned trial court sustained the motion for a new trial, and this being the situation its action therein should be sustained if it can be upon consideration of the whole record.

Appellant states in his brief and so stated in oral argument, and this is not controverted, that the trial court sustained plaintiff's motion for a new trial solely on the ground that error, in the opinion of the trial court, had been committed in giving instruction number one requested by defendant; that this...

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11 practice notes
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri Supreme Court of Missouri
    • March 12, 1951
    ...Printing & E. Co., 330 Mo. 190, 48 S.W.2d 911; Blackwell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (3) The thir......
  • 229 S.W. 836 (Mo.App. 1921), Moffatt v. Link
    • United States
    • Missouri Court of Appeals of Missouri
    • March 25, 1921
    ...after she went into the roadway. Her contributory negligence is clearly established. Theobald v. Transit Co., 191 Mo. 429; Lowry v. Smith, 198 S.W. 437 (Mo. App.); Petty v. Railroad, 179 Mo. 674; Minor v. Stevens, 42 L.R.A. (N. S.) 1178; Berry on Automobiles, sec. 214 and 215; McGauley v. T......
  • 245 S.W. 1117 (Mo.App. 1922), Smith v. Allee
    • United States
    • Missouri Court of Appeals of Missouri
    • December 5, 1922
    ...Paden v. Van Blarcom, 181 Mo. 117; Barton v. Pepkin County Agrl. Soc. 52 N.W. 1129; Ginter v. O'Donoghue, 179 S.W. 732; Lowry v. Smith, 198 S.W. 437. (3) The court erred in giving plaintiffs' Instruction No. 1 because: 1. It authorized the jury to find a verdict against all the defendants i......
  • 249 S.W. 651 (Mo.App. 1923), Uetz v. Skinner
    • United States
    • Missouri Court of Appeals of Missouri
    • March 16, 1923
    ...by reason of such failure he is guilty of such negligence as would prevent any recovery for the injury sustained. Lowery v. Smith, 199 Mo.App. 170-171 and authorities cited and collated. (5) It is axiomatic in the law of negligence that a casual connection must be established between the in......
  • Request a trial to view additional results
11 cases
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri Supreme Court of Missouri
    • March 12, 1951
    ...Printing & E. Co., 330 Mo. 190, 48 S.W.2d 911; Blackwell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (3) The thir......
  • 229 S.W. 836 (Mo.App. 1921), Moffatt v. Link
    • United States
    • Missouri Court of Appeals of Missouri
    • March 25, 1921
    ...after she went into the roadway. Her contributory negligence is clearly established. Theobald v. Transit Co., 191 Mo. 429; Lowry v. Smith, 198 S.W. 437 (Mo. App.); Petty v. Railroad, 179 Mo. 674; Minor v. Stevens, 42 L.R.A. (N. S.) 1178; Berry on Automobiles, sec. 214 and 215; McGauley v. T......
  • 245 S.W. 1117 (Mo.App. 1922), Smith v. Allee
    • United States
    • Missouri Court of Appeals of Missouri
    • December 5, 1922
    ...Paden v. Van Blarcom, 181 Mo. 117; Barton v. Pepkin County Agrl. Soc. 52 N.W. 1129; Ginter v. O'Donoghue, 179 S.W. 732; Lowry v. Smith, 198 S.W. 437. (3) The court erred in giving plaintiffs' Instruction No. 1 because: 1. It authorized the jury to find a verdict against all the defendants i......
  • 249 S.W. 651 (Mo.App. 1923), Uetz v. Skinner
    • United States
    • Missouri Court of Appeals of Missouri
    • March 16, 1923
    ...by reason of such failure he is guilty of such negligence as would prevent any recovery for the injury sustained. Lowery v. Smith, 199 Mo.App. 170-171 and authorities cited and collated. (5) It is axiomatic in the law of negligence that a casual connection must be established between the in......
  • Request a trial to view additional results