Anderson v. Voeltz

• Citation: 206 S.W. 584
• Decision Date: 25 November 1918
• Docket Number: No. 2335.,2335.
• Parties: ANDERSON v. VOELTZ.
• Court: Missouri Court of Appeals

206 S.W. 584

ANDERSON v. VOELTZ.

No. 2335.

Springfield Court of Appeals. Missouri.

November 25, 1918.

Appeal from Circuit Court, Webster County; C. G. Skinker, Judge.

Action by J. H. Anderson against henry Voeltz. Judgment for defendant, and plaintiff appeals. Affirmed.

Hamlin & Hamlin, of Springfield, and Seth V. Conrad, of Marshfield, for appellant. Dickey & Dickey and J. E. Haymes, all of Marshfield, for respondent.

STURGIS, P. J.

The plaintiff suffered defeat in a jury trial wherein he claimed damages for personal injuries inflicted on him by defendant in running defendant's automobile against and over him. Plaintiff alleged that he was walking along the public highway, using due care, and that defendant, after he saw plaintiff, or could have seen him, had he been using ordinary care, could have slowed down or stopped his automobile, or given plaintiff warning of the approach of same, failed and neglected to do any of these things, but ran the automobile at a high and dangerous rate of speed against this plaintiff. The defendant answered by denying these negligent acts and alleging that the accident was wholly due to plaintiff's fault, in that the plaintiff was standing behind another automobile, which hid stopped in the public road where defendant had to pass, and while defendant did not and could not see plaintiff, he, without looking or paying any heed, stepped directly in front of defendant's automobile, so close thereto that it was impossible for defendant to avoid striking him.

This was the narrow issue presented to the jury, and the conceded facts still further narrowed it to a single disputed point. The plaintiff was traveling east in a Ford car, called the McSwain car, from the name of the driver, with three other parties, and the driver of that car stopped in the road at plaintiff's home to allow him to leave the car. This car stopped in the middle or slightly to the north side of the traveled portion of the road, and plaintiff's home was on the south side. Plaintiff alighted from the car on its north side, which stood there a few minutes, while he talked with the other occupants. Meanwhile defendant approached from the west, and was passing the other car on the south, when he struck plaintiff. The road was straight, and there were no obstructions. The plaintiff says he only took three or four steps after he left the McSwain car till "something hit me." Defendant gave no signal in approaching or passing the Sic-Swain car.

The evidence for plaintiff on the only disputed point is that the car which he had alighted from started on, and had run a distance of 70 or 80 feet, before it passed defendant's car, while that for defendant is that, while his car was in the very act of passing the McSwain car, the plaintiff suddenly stepped in front of defendant's car, so close as to make the collision unavoidable and almost instantaneous. The evidence was sharply conflicting on this point; the occupants of each car supporting the theory favorable to such car. The plaintiff says he looked down the road before attempting to cross same, and saw nothing coming. There was a buggy, however, some 200 feet down the road, going the other direction. The plaintiff concedes that the jury's finding on this point is conclusive, if the court's instructions are correct.

The plaintiff contends, however, though such was not his theory at the trial, that even if the plaintiff's car stood still till the defendant was in the act of passing it, and plaintiff then emerged from behind said car immediately in front of defendant's car, yet the evidence does not sustain defendant's contention that He did not and could not see and observe plaintiff prior to his stepping from behind the car. To sustain his contention, plaintiff proved that the McSwain car had the top down, and in such condition would hide a man only to his arm pits; but this loses sight of the fact that there were three men yet in this car, and their bodies would obstruct the view.

Plaintiff assigns error on the instructions given for defendant. Instruction No. 3 given for defend...