Barnes v. Elliott

• Decision Date: 08 May 1923
• Docket Number: No. 17735.,17735.
• Citation: 251 S.W. 488
• Parties: BARNES v. ELLIOTT
• Court: Missouri Court of Appeals

251 S.W. 488

BARNES v. ELLIOTT

No. 17735.

St. Louis Court of Appeals, Missouri.

May 8, 1923.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by Arthur F. Barnes against C. S, Elliott. From judgment for plaintiff, defend. ant appeals, Affirmed.

John J. Nangie and Clyde Gary, both of St. Louis, for appellant.

Carter, Nortbni & Jones, of St. Louis, for respondent.

NIPPER, C.

Plaintiff sued defendant for, damages which plaintiff alleges he sustained when his automobile was struck by defend" ant's automobile while both were driving on the north and south road in St. Louis county, Plaintiff recovered judgment, and defendant appeals.

The petition is in two counts. In the first count it is alleged that, at the time of tbe accident, August 1, 1920, plaintiff was driving his automobile in a southerly direction on the west side of the north and south road in St. Louis county, Mo., with the headlights turned on and plainly visible; that the de"s fendant was driving his automobile in a northerly direction on the east side of said road, with his headlights turned on and plainly visible; that when the defendant reached a point about 40 or 50 feet south of the plaintiff's automobile, but across the road therefrom, "the defendant negligently and carelessly drove his automobile across the road and caused it to run into the automobile of this plaintiff with such force as to knock plaintiff's automobile off the driveway of said road into the ditch or gully on the west side thereof," causing plaintiff's machine to be damaged. The petition then sets out the damages in detail.

The negligence alleged in the second count of the petition is that the defendant was driving his automobile on the east side of said road, approaching plaintiff in a careless and reckless manner, and at a rate of speed in excess of 25 miles per hour, to wit, about 30 miles per hour, for a distance of a half mile or more; "that while driving said automobile as aforesaid, and when about to pass the plaintiff's automobile, the defendant turned his said automobile to the left of the center of the road and caused his said automobile to run into plaintiff's automobile with such force as to knock plaintiff's automobile off the driveway of said road."

Defendant's answer consists of a general denial, coupled with a plea of contributory negligence, and a counterclaim of defendant for damages to his car.

Plaintiff was driving a five-passenger Nash car south on the west side of the north and south road. He Was accompanied by his wife, and they were returning to their home in Webster Groves about 2 o'clock a. m., on August 1, 1920. As plaintiff was driving his car south, defendant, accompanied by his friend, John A. Love, was driving his car north on the east side of the road. Near the point where the two cars would pass each other, there was a Ford car standing on the east side of the road. Defendant says the Ford car was standing on the east side of the road, and that there were no lights on it. When plaintiff was opposite the Ford car, defendant, who was approaching the Ford car from the rear and on the same side of the street swerved his car to the left in order to miss the Ford car, and in doing so struck plaintiff's automobile, causing the damages which brought about this litigation.

From plaintiff's evidence it appears that he had just passed the Ford car about one car's length when the defendant swerved directly from the east side of the road, striking his car in a "head-on collision" with such force that the rear end of his car was thrown into the gutter or ditch on the west side of the road, leaving the front wheels on the roadway. Plaintiff was driving about three feet from the west side of the road. He was going about 18 or 20 miles an hour. The road was about 30 feet wide. Defendant was driving somthing like 25 miles an hour.

Plaintiff states that, when he saw the car of defendant swerve, he immediately put one foot on the clutch, and one on the foot brake. His emergency brake was on, and he had stopped his car when plaintiff hit him.

John A. Love, who was occupying the car with defendant, testified that he noticed a Ford car in a rather dark place just ahead of them, with lights off, "not having any lights that any one could see until we come almost on it;" that defendant turned to the left to keep from hitting the Ford car, and when he turned out to keep from striking the Ford car he struck the car of plaintiff; that the Ford car was not discovered until defendant was about 50 or 75 feet away from it. There is a straight road at that point. Defendant was going about 25 miles an hour.

Defendant testified that he tried to avoid striking the Ford car, and "I hit the car of Mr. Barnes as I turned out to go by"; that there were no lights on the rear of this Ford car, and that he was going about 20 or 25 miles per hour. He did not see the Ford car until it was about 20 or 25 feet away from him.

Defendant offered a demurrer at the close of plaintiff's case, which was overruled.

Defendant makes the contention here that the second count of plaintiff's petition is a statutory cause of action, based upon a...