Curits v. Harrison

• Decision Date: 26 June 1923
• Docket Number: No. 17734.,17734.
• Citation: 253 S.W. 474
• Parties: CURTIS v. HARRISON et al.
• Court: Missouri Court of Appeals

253 S.W. 474

CURTIS v. HARRISON et al.

No. 17734.

St. Louis Court of Appeals. Missouri.

June 26, 1923.

Rehearing Denied July 12, 1923.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by Oscar Curtis against W, R. Harrison and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Conrad Paeben, of St. Louis, for appellants. Jos. C. McAtee, of Clayton, for respondent.

BECKER, J.

Plaintiff obtained a judgment against the defendants William R. Harrison and his minor son, William Robert Harrison, in the sum of $1,000 as damages for personal injuries and damages to an automobile truck which he was driving, resulting from a Ford sedan, being driven by the said William Robert Harrison, and owned by his father, colliding with the said truck of plaintiff. The defendants appeal.

The petition alleges that the defendant William R. Harrison is the father of the defendant William Robert Harrison; that the said son on December 18, 1920, was about 16 years of age; that, while plaintiff was driving a Ford truck loaded with 28 bales of hay southwardly on the Denny road at a point about a half mile north of the Clayton road, in St. Louis county, the junior defendant was driving a Ford sedan northwardly along the said Denny road on his way to school, and that, in attempting to pass a motor bus loaded with young boys who were being conveyed to the same school (the motor bus also proceeding northwardly along the Denny road and just in front of the sedan driven by young Harrison) he negligently and carelessly attempted to pass said motor bus at a time when the plaintiff's truck and the motor bus were about to pass each other on said Denny road, with the result that the said Ford sedan collided with plaintiff's truck, injuring plaintiff and damaging plaintiff's truck.

The assignments of negligence set up in the petition are that the defendant negligently failed to seasonably turn the Ford sedan to the right of the center of the road so as to permit plaintiff to pass; second, that, under the statutes of Missouri, the defendant was prohibited from passing or attempting to pass a motor bus going in the same direction as the defendant's Ford sedan at a time when such motor bus and plaintiff's truck approaching each other in opposite directions, were about to pass to the right of each other, but that the defendant negligently attempted to pass said motor bus under such circumstances, and in doing so caused the Ford sedan to crash into the truck of plaintiff; third, that it was the duty of defendant to drive the motor vehicle on a public highway in a careful and prudent manner, but that he failed to do so in that he negligently attempted to pass a motor bus under the circumstances set out in the second assignment of negligence.

The answer of William R. Harrison, the father, was a general denial. The answer of the son, William Robert Harrison, in addition to a general denial, set up by way of affirmative defense that when he overtook the motor bus going in the same direction he was driving in the Ford sedan, and had turned his car to the left of the motor bus ahead of him, and was in the act of passing same, and the plaintiff, driving his truck southwardly on the Denny road, and to the east of the center of said road, without warning drove his truck immediately in the path of the defendant's sedan, causing plaintiff's truck and defendant's sedan to collide. This answer also sets up a plea of contributory negligence alleging that the plaintiff failed to keep a vigilant watch ahead, failed to sound a warning of his intention to cut into the path of defendant's automobile when he saw, or by the exercise of ordinary care could have seen, defendant's automobile passing to the left of the motor bus going in the same direction as the defendant, in failing to operate plaintiff's truck as closely as practicable to the right-hand boundary of the Denny road, and allow the more rapidly moving vehicles reasonably free passage to the left of his motor truck, failing to keep his truck under control, failing to timely stop or turn aside his motor vehicle when he saw or by the exercise of ordinary care could have seen the impending danger of a collision between his truck and defendant's automobile.

The material testimony adduced on behalf of plaintiff may be summarized as follows:

Witness Clinton Sonntag testified that he was driving the motor bus for Chaminade College, taking the boys from Kirkwood and its vicinity to school, on the morning in question; that the younger Harrison, driving his father's Ford sedan, overtook the motor bus at the foot of a hill on the Denny road, at a time when plaintiff was driving his Ford " truck, loaded with baled hay, down the hill in the opposite direction. According to Sonntag, when he approached the plaintiff's truck he turned the bus to the right side of the road, and the plaintiff turned his truck to his right for the purpose of passing; that when plaintiff's truck and the bus were about to pass each other the younger Harrison came up from behind the bus, and in attempting to pass it collided with the truck, causing the sedan to be thrown against the bus, near the rear end thereof, turning the sedan crosswise in the road. According to this witness, at the time of the collision the motors of plaintiff's truck and the defendant's sedan were about abreast of the motor of the motor bus. `Witness Sonntag further testified that he met the defendant William R. Harrison, the father, on the afternoon on which the collision occurred, and that Harrison told him that "he sent his boy to school to come back to go to town with his mother."

Julius H. A. Buermann testified he was a jury clerk by occupation, and was traveling north on the Denny road in an automobile when the younger Harrison passed by in a sedan, and that he was within 250 to 300 yards of the place of the accident at the time it occurred; that when the collision between the sedan and plaintiff's truck occurred the sedan was attempting to pass around the motor bus, and had gotten to a point where the sedan was about even with the bus, or perhaps a fraction ahead of it; that the impact threw the sedan against the bus, and that when all three of the vehicles had come to a stop the sedan was facing west diagonally across the road.

Another witness, Walter Schumacher, testified that he was riding in the automobile with the witness Buermann, and corroborated the testimony of that witness. He testified that the Ford sedan and the Chaminade bus were about abreast of each other going in a northerly direction just before the collision.

Oscar Curtis, the plaintiff, testified that, as he was going down a hill on Denny road on the right-hand side of the road going south, the Chaminade bus was coming up the hill on the Denny road on the east side thereof, going in a northerly direction, and that "as he was passing" the Chaminade bus young Harrison attempted to pass the bus on the left-hand side thereof, namely, on the west side of the Denny road, and ran into his truck. Plaintiff testified that he had been coasting down the holding his machine with his brakes. In answer to the question as to whether he had disengaged his clutch so that his motor was running free, plaintiff answered:

"Yes; when I saw this boy was going to hit me, and I couldn't get out of the way—the bus was coming toward me and I couldn't run fast enough to get past him—I put my feet on both of the levers, and I stopped the motor, and raised myself up to jump, and just then the machine struck me. That is the only thing that saved me from being smashed all to pieces."

On cross-examination plaintiff testified that when he first saw defendant's sedan coming from behind the bus in the attempt to pass the bus plaintiff's track was about " 100 feet from the said sedan, and, when asked why he did not stop his truck when he saw the defendant's machine coming from behind the bus, he answered:

"If I had stopped my machine the bus would have come alongside of me anyway. We would have both went together. He was going just like a bat flying, he was going so fast.

"Q. If you saw him coming flying like a bat, why didn't you stop your machine? A. I didn't have to stop my machine.

"Q. You didn't think you had to avoid a collision if you could; is that it? A. If I had stopped my machine I would be into it just the same; no matter which way they went the bus was going this way, and he would come alongside of me anyway."

Plaintiff was asked whether he was in the center of the road when he came coasting down the hill, and he answered that he was not, but that he drove his truck on the right-hand...