Craton v. Huntzinger

• Decision Date: 13 May 1912
• Citation: 147 S.W. 512
• Parties: CRATON v. HUNTZINGER.
• Court: Missouri Court of Appeals

147 S.W. 512

CRATON v. HUNTZINGER.

Kansas City Court of Appeals. Missouri.

May 13, 1912.

1. HIGHWAYS (§ 181)—AUTOMOBILES—DUTY TO OTHER TRAVELERS.

Rev. St. 1909, § 8518, which required automobile owners, in meeting frightened horses on a highway, to give such personal assistance as would be reasonable to insure the safety of all persons concerned and prevent accidents, did not require such assistance as would absolutely prevent injury.

2. TRIAL (§ 251)—SUBMISSION OF ISSUES— CONFORMITY TO PLEADING.

In personal injury actions, it is improper to submit issues of negligence not raised by the pleadings.

Appeal from Circuit Court, Carroll County; Francis H. Trimble, Judge.

Action by M. W. Craton against Noah Huntzinger. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lozier & Morris and F. E. Atwood, all of Carrollton, for appellant. James F. Graham and Jones & Conkling, all of Carrollton, for respondent.

ELLISON, J.

This action is for personal injuries received by plaintiff. He charges that they were occasioned by defendant's negligence in operating an automobile on the public highway. He recovered judgment in the trial court.

It was disclosed in evidence that defendant was a farmer, living about 15 miles northeast of Carrollton, and that on the 30th of September, 1910, he, his daughter, nephew, and a farm hand came into Carrollton in his automobile, operated by his nephew. They arrived there about 10 o'clock in the morning, and left for home about 4 o'clock in the afternoon, returning, as they came, over a much traveled public road. Plaintiff was a practicing physician, residing in Carrollton, and that morning went by railway to the town of Bogard to see a patient. He hired a buggy and team with a driver, to be driven back home, and on the way back, about 5 miles out of Carrollton, met with defendant and his family, coming in the opposite direction, on their way home. When he came into the view of defendant in the automobile, it was about 300 feet away. The horses were displaying signs of fright, and plaintiff raised his hand as a sign to stop the automobile. It kept coming on, notwithstanding the horses had begun to "jump and lunge" about, trying to turn around. As the machine came closer, to within 20 or 30 feet of the buggy, it stopped; but the horses had become altogether unmanageable, and turned suddenly around, mashing down the front wheel of the buggy and running away. Plaintiff was thrown out, receiving serious and permanent injury. Plaintiff's position is that after defendant saw his serious predicament he permitted the machine to run up to within 20 or 30 feet of the horses before stopping. The position of the defendant is that plaintiff's horses were vicious, wild, and unruly, and that as soon as they saw the machine they suddenly whirled around and ran away, and that the machine was stopped nearly 250 feet off, and as soon as possible after seeing the horses.

This cause of action arose before the provisions of the Laws of 1911 were enacted; and it is therefore governed by the provisions of chapter 83, R. S. 1909, wherein it is made the duty of drivers of automobiles on public streets and highways to keep a vigilant watch for all vehicles drawn by animals, and to stop such machine when meeting with such vehicles until the latter may pass. And by provision of section 8518 drivers of automobiles, upon signal by "holding up the hand or otherwise from a person riding or driving a horse or horses or other draft animal on the highway, shall cause the motor vehicle to stop as long as may be necessary" for the horses to pass. And the male driver "and other male occupants thereof over the age of fifteen years, while passing any horse or horses, or other draft animals which appear badly frightened, or...