Clear v. Van Blarcum

• Citation: 241 S.W. 81
• Decision Date: 22 May 1922
• Docket Number: No. 14350.,14350.
• Parties: CLEAR v. VAN BLARCUM.
• Court: Court of Appeal of Missouri (US)

241 S.W. 81

CLEAR v. VAN BLARCUM.

No. 14350.

Kansas City Court of Appeals. Missouri.

May 22, 1922.

Appeal from Circuit Court, Johnson County; Ewing Cockrell, Judge.

"Not to be officially published."

Action by John H. Clear against Bush Van Blarcum. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. D. Aber, of Warrensburg, for appellant.

Nick M. Bradley, of Warrensburg, for respondent.

ARNOLD, J.

This is an action for damages to two mules belonging to plaintiff which were injured by being struck by defendant's automobile.

The injury occurred on October 9, 1920, on the public road between Montserrat and Warrensburg, in Johnson county. Plaintiff charges that, while returning at night from Knobnoster, where he had exhibited three young mules at a street fair, driving a wagon drawn by two horses, with the said mules tied to the rear end of the wagon, and following the same, that at a point west of Montserrat the defendant "negligently, carelessly, and recklessly ran an automobile upon and against said mules and wagon," breaking the leg of one of the mules, causing its total loss, and tearing and lascerating the rump and hip of another, to its damage in the sum of $150, and further alleges that defendant did not have proper lights and neglected to keep a proper lookout in violation of the rules of the road.

The record discloses that defendant, in company with others, had attended the entertainment at Knobnoster, which also included a competitive basket ball game. There were other automobiles in the company, each carrying members of the faculty and students of some of the public schools of Johnson county. The night was clear, though the moon was not shining, and there was more or less dust in the air from passing vehicles, which, in a measure, tended to obstruct the view of persons using the highway. When defendant approached the point of the accident with his automobile, the wagon and mules ahead of him were not distinguished, by reason of the dust, until he was within a few feet of them, and in an attempt to pass to the left of them the collision occurred, with results as above indicated.

The petition charges negligence as hereinabove stated. The amended answer is, first, a general denial, and further pleads contributory negligence, in that plaintiff—

"in violation of law, refused, failed, and neglected to turn to the right but negligently maintained his course in the middle of the road; that, after plaintiff had been fully informed by defendant of his approach, and continued so to refuse to give the road, defendant, at a point where there was ample room and space therefor, attempted to go past plaintiffs wagon, * * * and while doing so two of plaintiff's said mules suddenly, by the exercise of their own caprice, without warning, and before defendant could possibly stop his car, swung their bodies in front of defendant's car, and were thereby struck; that if plaintiff's mules were injured it was due to the said negligent and willful acts of plaintiff in not driving to the right of the road as defendant approached and gave warning thereof, and by the caprice and proclivities of the mules in so suddenly jumping before defendant's car."

The reply was a general denial. The cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $250. A motion for new trial duly filed was overruled by the court, and defendant appeals.

The chief point of contention between the parties at the trial was as to whether the mules were struck by the automobile from the rear, as claimed by plaintiff, or whether they swung to the left of the wagon in the direct line of the approaching automobile, and were struck, as defendant contends.

Defendant declares the court erred in permitting some of plaintiff's witnesses, who were not eyewitnesses to the collision, to state their conclusions as to how defendant's car collided with plaintiff's mules, and from what direction. One of said witnesses Charles S. Mayes, near: whose residence the collision occurred, was one of the first to reach the scene of the accident, arriving about an hour thereafter. He testified that plaintiff told him where the accident took place; that he examined the surroundings, saw mule tracks and wagon tracks, and could see where the mules had been walking; the inside, or south mule, back about 30 steps, was in the middle of the road, and did not get over to the south side thereof; that she got a little farther north. He was asked:

"Q. Did you see any indication there that the car had struck the wagon, and, if so, tell it?"

The question was objected to because it asked "for au indication of a fact," and that he should tell only what he saw. The objection was overruled by the court. He also testified as to the position and character of the cut on the hip of the mule that was so cut, and then was asked to "tell the jury where thin mule was struck, from behind or on the side?"...