Brickell v. Williams

• Decision Date: 13 June 1914
• Citation: Brickell v. Williams, 167 S.W. 607, 180 Mo. App. 572 (Mo. App. 1914)
• Parties: JOHN W. BRICKELL, Respondent, v. NEAL WILLIAMS and C. WILLIAMS, Appellants
• Court: Missouri Court of Appeals

167 S.W. 607

180 Mo.App. 572

JOHN W. BRICKELL, Respondent, v. NEAL WILLIAMS and C. WILLIAMS, Appellants

Court of Appeals of Missouri, Springfield

June 13, 1914

Appeal from Butler Circuit Court.--Hon. J. P. Foard, Judge.

AFFIRMED.

Judgment affirmed.

B. J Puckett and Whaley & Ing for appellant.

(1) Contributory negligence bars recovery in this case and appellants' peremptory instruction should have been given. Raybourn v. Phillips, 160 Mo.App. 534; Zumault v. Railroads, 175 Mo. 288; Doerr v. St Louis Brewing Ass'n, 176 Mo. 547; Walsh v Mississippi Valley Transp. Co., 52 Mo. 434; Weller v. Railroad, 120 Mo. 635; Newton v. Railroad, 152 Mo.App. 167; Butcher v. Railroad, 241 Mo. 213; Jackson v. Railroad, 171 Mo.App. 430; Burnett v. Railroad, 172 Mo.App. 51; Wheeler v. Wall, 157 Mo.App. 38; Hudson v. Railroad, 101 Mo.App. 13. (2) There was no evidence of even a single act of negligence on the part of the defendants; and it was error to instruct the jury on the question of the negligence of the defendants. Bruce v. Railroad, 163 S.W. 548. (3) The court erred in refusing to give to the jury defendants' instruction numbered 4, defining negligence under the pleadings and proof. Raybourn v. Phillips, 160 Mo.App. 534; Kirby v. Lower, 139 Mo.App. 677.

L. M. Henson for respondent.

(1) This case was fairly tried, the jury passed upon all the facts, the judgment was manifestly for the right party and should be affirmed. Grabill v. Bearden, 62 Mo.App. 459; Carr v. Ubsdell, 97 Mo.App. 326; Zertanna v. Gray, 102 Mo.App. 188; Blanton v. Dold, 109 Mo. 64; Bradshaw v. Cochran, 91 Mo.App. 294; Bembroke v. Railroad, 32 Mo.App. 61. (2) The instructions, taken as a whole, were favorable to the defendants and covered every issue in the case. Sapp v. Hunter, 134 Mo.App. 685; Huff v. City of Marshall, 97 Mo.App. 542; Brown v. Railroad, 50 Mo. 461; Beall v. Railroad, 97 Mo.App. 111. (3) Plaintiff's driver was not bound to look for the automobile as he had no reason to anticipate that it would run backwards on the wrong side of the street. Crawford v. Kansas City Stock Yards Co., 215 Mo. 394. (4) Defendants were required to keep a vigilant watch for vehicles drawn by animals and should have been on the other side of the street. They violated the rules of the road. Secs. 8516, 8517, 8523, R. S. 1909; Hall v. Compton, 130 Mo.App. 675.

ROBERTSON, P. J. Farrington and Sturgis, JJ., concur.

OPINION

ROBERTSON, P. J.--

On the verdict of a jury in his behalf the plaintiff obtained a judgment for eighty-five dollars against the defendants for an injury to his horse necessitating it being killed, and the defendants have appealed. The printed record filed here contains 128 pages.

The accident occurred in the city of Poplar Bluff on Sunday afternoon, August 10, 1913, near the intersection of Main and Fairmount streets. At this point Fairmount street runs north and south and Main street northwest and southeast. In the center of Fairmount street a sewer ditch had been constructed, on the west side of which ditch the dirt had been piled up four or five feet high, extending to within about one hundred feet of Main street. The defendants' home was on the east side of Fairmount street about four hundred feet from the intersection of said streets. On the day of the accident the defendants with others entered their automobile, in front of their home, with the top up and the back curtain down, and in backing their automobile along the east side of Fairmount street to Main street they ran against the plaintiff's horse being driven to an ice cream wagon by a boy fourteen or fifteen years of age by the name of Ben Sparks. The driver of the automobile was on its right hand side. There was considerable testimony tending to prove that the boy did not enter the street as required by the ordinance hereafter referred to.

Taking the testimony of the boy most favorable to the plaintiff as true, which it is our duty to do where a verdict has been rendered in his behalf and the defendant has appealed, it discloses that the boy was driving north towards the automobile on the right hand side of Fairmount street and that he did not discover the machine (which defendants testify was going at about two miles per hour) until he was within ten feet of it, that he then called to the occupants but that they failed to slacken their speed until after they had struck the animal. The driver of the automobile testified that he did not see the animal until instantly before he struck it. The ice cream wagon had a top on it extending six or eight feet above the ground.

The defendants, over plaintiff's objection, offered in evidence an ordinance of the city of Poplar Bluff providing that vehicles driven upon its public streets should enter cross streets at the right of the intersection of the center lines, and the defendants requested an instruction that if the jury believed from the evidence that the driver of the plaintiff's animal was driving in violation of the ordinance the plaintiff could not recover. But the court of its own motion gave an instruction that if the driver of the animal did not enter Fairmount street as required by the said ordinance and that his failure in that regard was the direct or contributing cause of the injury, then their verdict must be for the defendants. The instruction given by the court properly defined the law and was more favorable to the defendants and more clearly submitted the issues than the one they requested; consequently, ...