Brown v. Davis

• Decision Date: 05 November 1930
• Docket Number: No. 21250.,21250.
• Parties: BROWN v. DAVIS.
• Court: Missouri Court of Appeals

32 S.W.2d 145

BROWN v. DAVIS.

No. 21250.

St. Louis Court of Appeals. Missouri.

November 5, 1930.

Rehearing Denied November 21, 1930.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by D. H. Brown against Eula Davis. Judgment for defendant upon her counterclaim, and plaintiff appeals.

Affirmed.

William Hiett, of Houston, and James Booth, of Pacific, for appellant.

J. Hugh Nolen, of Okemah, Okl., and A. A. Tibbe, of Union, for respondent.

HAID, P. J.

This is an appeal from a judgment entered in favor of the defendant upon her counterclaim. The petition of plaintiff was one for damages sustained in an automobile collision. It charged that plaintiff's Chevrolet truck and defendant's Buick sedan collided, and that as a result plaintiff sustained personal injuries and his automobile was damaged. The petition contained four assignments of negligence, first, in that the Buick sedan was driven at an unnecessarily fast, reckless, and negligent rate of speed; second, in negligently failing to drive and operate said automobile in a careful and prudent manner; third, in negligently failing to drive and exercise the highest degree of care and at a rate of speed so as to endanger the property of another, or life and limb of another, particularly the property and limb of plaintiff; and, fourth, in negligently failing, when operating said automobile, to keep the same as close to the right-hand side of said highway as practicable.

To the petition the defendant filed her answer and counterclaim, which contained a general denial of the allegations in the petition of plaintiff and then alleged that her car was being operated in an easterly direction on state highway No. 66, as close to the righthand side of the highway as practicable, and that the truck driven by plaintiff was being driven at a fast, reckless, and negligent rate of speed, and that the plaintiff carelessly and negligently ran his truck into the car of the defendant, forcing and crowding her completely off of said highway and causing irreparable damage to defendant's car as a result of and because of the carelessness and negligence of the plaintiff. The defendant then alleges the damage done to her automobile and injuries which she suffered to her person; that defendant was driving his truck on said highway in a westerly direction at a reckless, fast, and negligent rate of speed under the circumstances and not in a careful and prudent manner, and that the said plaintiff negligently and carelessly failed to drive and operate his truck as close to the righthand side of the highway as practicable, and that the said plaintiff failed to exercise the highest degree of care, which endangered the life and limb of said defendant.

By stipulation of the parties, the record does not contain the evidence in the case, but is prepared in accordance with provisions of rule 8 of this court to the effect that, in reviewing the action of the trial court in giving and refusing instructions, it shall not be necessary to set out the evidence, but it shall be sufficient to state that there was evidence pending to prove the particular fact or facts.

In accordance with this rule the record sets but that the plaintiff introduced evidence, direct and circumstantial, tending to prove that the facts alleged in the petition were true; that the defendant introduced evidence, direct and circumstantial tending to prove that the facts alleged in the petition were not true; that the defendant introduced evidence, direct and circumstantial tending to prove that the facts alleged in the counterclaim were true; and that plaintiff introduced evidence, direct and circumstantial, tending to prove that the facts alleged in the counterclaim were not true.

The errors alleged all relate to the instructions given to the jury. The first complaint is leveled at defendant's instruction O with particular reference to the charge therein that if the plaintiff, by his agent, negligently and carelessly operated said automobile by failing to keep the same as far to the right of the said highway as practicable. An examination of the record, however, discloses that at the instance of the plaintiff the court charged the jury that, if it found and believed from the evidence that the collision and consequent injuries to the plaintiff and to his truck were directly caused by defendant in negligently failing,...