Crawshaw v. Mable

• Decision Date: 04 October 1932
• Docket Number: No. 22089.,22089.
• Parties: CRAWSHAW v. MABLE.
• Court: Missouri Court of Appeals

52 S.W.2d 1029

CRAWSHAW v. MABLE.

No. 22089.

St. Louis Court of Appeals. Missouri.

October 4, 1932.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Leonard Crawshaw against Frank Mable, in which defendant filed a counterclaim. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Leahy, Saunders & Walther and Lyon Anderson, all of St. Louis, for appellant.

Bass & Bass and J. S. Gollub, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff and for loss arising on account of damage to his automobile, resulting from a collision between his automobile and the automobile of defendant. The collision occurred on May 11, 1929, about 8 o'clock in the morning, on Lindell boulevard, in the city of St. Louis. Plaintiff was driving west, and defendant was driving east, at the time of the collision. The petition alleges, by way of specifications of negligence, (1) that defendant negligently drove and operated his automobile at a dangerous and excessive rate of speed; and (2) that defendant negligently failed to drive his automobile as close to the right-hand side of the street as practicable. Other acts of negligence were alleged, but were abandoned at the trial.

The answer denies generally the allegations of the petition, and charges by way of an affirmative defense that, whatever injuries or damages, if any, plaintiff sustained, were directly caused by his own negligence in driving and operating his automobile at an excessive rate of speed, in failing to drive his automobile as close to the right-hand side of the street as was practicable, and in failing to swerve his automobile so as to avoid striking and colliding with defendant's automobile. The same acts of negligence, along with negligence arising under the humanitarian rule, are alleged by way of a counterclaim.

The trial, with a jury, resulted in a verdict for plaintiff, both on his cause of action and on defendant's counterclaim, and judgment was given accordingly.

Plaintiff testified as follows: "On May 11, 1929, I was a service car driver, working for myself, and had been such between four and five years. On this day in question I was operating on Lindell Boulevard going west. My car was the only car between Kingshighway and Union moving west. I think there were, maybe, one or two cars behind me, but none in front of me, going west. The traffic was four and five deep coming east. The scene of this collision was 300 or 400 yards west of Kingshighway. These other cars going east in four or five lines of traffic were two or three feet apart, moving at a pretty good rate of speed. The north line of traffic going east was I judge eight to ten feet over the middle of the street on the north side of the street. I think there were three cars parked on the north side of the street along there, so that there was not much more room than for one car for the westbound traffic. I was going west at a rate of speed of 22 or 25 miles per hour, and the defendant swung his car out and hit my car almost in the center, and I stopped my car dead still. When defendant struck me, his car was north of the center of Lindell about ten feet from the north curb. He struck my car almost center. I first observed him when he was right on me. He cut right out from behind the other line of cars that were moving east. Defendant was traveling 35 or 40 miles per hour at the time he ran out of the line of cars. I was driving a seven-passenger Buick sedan, and had been driving it, I judge, five or six months. When the collision occurred, my left front wheel collapsed. I first saw Mr. Mable's car when he was just cutting out of the line of traffic. He was three or four feet from the nearest line of traffic. The line of traffic was moving 30 or 35 miles an hour, and the cars were I imagine 10 to 12 feet in back of each other. There was no car in front of me, and I was proceeding in a straight line west. I guess the right-hand wheels of my car were 10 or 12 feet from the north curb. When I first saw defendant's car he was pulling out from the line of traffic 20 or 25 feet from my car, and I swayed my car to the right to keep from hitting him. Traveling at 22 to 25 miles an hour I could not, with safety to myself and the car, have stopped the car in anything under twenty feet. The instant I saw him I applied my brakes and turned to the right. I went 30 feet after I applied my brakes before I came to a stop."

Defendant testified as follows: "On May 11, 1929, I was driving an Auburn sedan east on Lindell Boulevard. It was a little after eight in the morning. I had taken my daughter to Washington University and had started east on Lindell. The traffic was very heavy. It was going in three lines. I was going in the third line. A man in front of us held the traffic. He was going very slow. A man in front of me pulled out and passed him, and I followed him. As I pulled out of the line I saw plaintiff's automobile approaching in front of me. I threw my car to the right and hit another automobile. At the same minute plaintiff's automobile ran in and hit me. My car was in about the center of the street. I was traveling about 20 miles an hour. Lindell Boulevard at that point must be about 50 feet wide. I swerved my car to the right and hit the other automobile to the right of me and that was in the third line of traffic — the line alongside of me. Plaintiff ran into my car. He hit from the front hub cap up to the rear. He bent the front fender. My car was about the center of the street. The front left side of plaintiff's car hit my car. There were not many machines going west at that time. I drove my car to the right as far as I could get it before plaintiff struck it. Plaintiff's car was going 25 or 30 miles an hour at the time it struck me. If he had changed the course of his car he would have avoided the collision. I do not think he changed the course of his car. My car moved a distance of between 30 or 40 feet from the time I first saw plaintiff's car until the collision occurred. When I first saw plaintiff's car, I turned to the right. I did not see the plaintiff's car until I got out of the line of east-bound traffic. I was about 25 feet from the north side of the street when the collision occurred. The street is about 50 feet wide. The middle of my car was on the middle line of the street. I don't believe I was going over 20 miles an hour."

Charles Lewis, a witness for plaintiff, testified as follows: "I was traveling west behind plaintiff, and it looked like I had a clear road in front of me. The traffic on my left going east was pretty well jammed, possibly 3 or 4 rows going east. I saw there was an accident in front of me. Defendant pulled out of line and bumped into another car in front of him. He bumped into two cars at the same time. There was no traffic in front of plaintiff that I could see. There were a few cars parked at the curb on the north side. I would say that plaintiff's car was 15 or 20 feet from the north curb of the street."

Plaintiff's instructions submitted the case to the jury on his cause of action on postulates...