Clark v. General Motor Car Co.

• Decision Date: 04 November 1913
• Citation: 160 S.W. 576,177 Mo. App. 623
• Parties: CLARK v. GENERAL MOTOR CAR CO.
• Court: Missouri Court of Appeals

160 S.W. 576

177 Mo. App. 623

CLARK v. GENERAL MOTOR CAR CO.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

1. MUNICIPAL CORPORATIONS (§ 706) — INJURIES ON STREETS — INSTRUCTIONS — CONFORMITY TO PETITION.

An instruction, in an action for injuries by being struck by an automobile, that if the omission of the chauffeur to sound a horn was such conduct as would not have characterized a reasonably prudent person under similar circumstances to avoid injuring a person on the street, and if such failure caused the automobile to strike plaintiff, the jury should find for him, was erroneous for not submitting the specific negligence alleged, where the petition charged that the chauffeur failed to sound a horn when he either saw or could have seen plaintiff by exercising ordinary care.

2. NEGLIGENCE (§ 119) — SPECIAL ALLEGATIONS.

A particular allegation of negligence controls over a general allegation in the petition, so that recovery will be allowed only for the particular negligence alleged.

3. NEGLIGENCE (§ 138) — ACTIONS — INSTRUCTIONS.

Where the petition alleges specific acts of negligence or a particular breach of duty, the instructions should submit such particular negligence and not merely submit negligence generally.

4. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS — AUTOMOBILES — WARNING.

Since there is no statute requiring an automobile driver to sound a horn or give other alarm on approaching a street crossing, his only duty was that imposed by common law, except that of exercising high care at all times as required by statute.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by Edward B. Clark against the General Motor Car Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Charles E. Morrow, of St. Louis, for appellant. Ellroy V. Selleck, Fauntleroy, Cullen & Hay, and Barclay & Orthwein, all of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant owned and operated automobiles in the city of St. Louis, and plaintiff was a pedestrian on a public street at the time of his injury. Plaintiff was injured through being run upon by one of defendant's automobiles, then operated by its chauffeur, going to the westward on Lawton avenue. The date was October 3d, and the evidence tends to prove that the hour of the collision was about 6:30 or 7 o'clock in the evening. Darkness prevailed and it was raining at the time. Plaintiff was going northward on the west side of Garrison avenue and in the act of crossing Lawton avenue when he was run upon by defendant's automobile near the north side of the latter street and about the usual crossing for pedestrians there.

There are a number of specifications of negligence set forth in the petition, but two of them only were referred to the jury by instruction and relied upon throughout for a recovery. These two specifications of negligence relate: First, to the omission of defendant to maintain lights on its automobile to enable a pedestrian to see its approach and the driver to see a pedestrian ahead; and, second, to defendant's failure to sound a horn or other warning of the approach of the automobile when the chauffeur either saw plaintiff crossing the street or in exercising ordinary care in that behalf he might have done so. The record abounds with evidence tending to prove both derelictions of duty last stated; that is, first, that defendant was operating the automobile after dark without lights, and, second, that the chauffeur omitted to sound a horn or other warning of approach when by exercising care he might have seen plaintiff crossing the street to the northward. On the other hand, there is an abundance of evidence on the part of defendant to the effect that defendant maintained lights on the automobile, and that they were aglow at the time, and that the chauffeur sounded the horn and thus gave warning, on approaching the point where plaintiff was run upon, in ample time to have enabled him to escape injury had he been exercising ordinary care for his own safety.

At the instance of plaintiff, the court gave the following instruction affording two predicates of liability and authorizing a recovery as therein stated: "The court instructs the jury that if you find from the evidence that on the evening of October 3, 1910, the automobile of defendant mentioned in the evidence was being operated by a chauffeur in the employ of the defendant, across or near the intersection of Garrison avenue and Lawton avenue in the city of St. Louis, places mentioned in the evidence; and that said avenues (at the places mentioned in the evidence) were, at that time, open public streets of the city of St. Louis, and were much used for travel as such; and...