Dignum v. Weaver

• Decision Date: 25 June 1918
• Docket Number: No. 2295.,2295.
• Citation: 204 S.W. 566
• Parties: DIGNUM v. WEAVER.
• Court: Missouri Court of Appeals

204 S.W. 566

DIGNUM v. WEAVER.

No. 2295.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by William H. Dignum against Sam C. Weaver. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. H. Horine and Wright Bros., all of Springfield, for appellant. Val Mason and Watson & Page, all of Springfield, for respondent.

STURGIS, P. J.

The defendant appealed from a judgment awarding plaintiff damages for personal injuries caused by collision with an automobile driven by defendant. The accident happened on College street, one of the paved and much-traveled streets of Springfield. Both parties were traveling east along this street, the plaintiff on foot, so that defendant approached him from the rear. There were no sidewalks at the place of the accident, and plaintiff, an old man, was walking on the graded portion of the street. The place of the accident was in a valley about 100 feet east from where the street crossed a bridge, so that, while the street was nearly level at this point, the defendant came down the hill, crossed the bridge, and was just starting up the other hill when the accident happened. According to defendant's evidence, he came down the hill at a speed of about 20 miles per hour, slowed down to 10 or 12 miles per hour in crossing the bridge, and was not sure whether he increased his speed before striking plaintiff or not, but said he usually turned on the gas in order to make the other hill. The plaintiff says that when he started to cross this bridge he looked back, but saw no one coming. He crossed the bridge, walked on about 100 feet along the south side of the paved roadway, turned little more toward the center of the street to avoid some mud and water, knew nothing of the approach of the automobile, was struck unawares, rendered unconscious, and learned the cause of his injuries later when defendant and another man helped him up and took him home. The street was straight and unobstructed, but defendant says he did not see, or at least took no notice of, plaintiff till he (defendant) was crossing this bridge, and plaintiff was then walking in the roadway about 100 feet ahead, on the same side as defendant and some 6 or 8 feet from the south side of the paved portion. He claims that plaintiff, being attracted by the sound of the automobile crossing the bridge, turned and looked back; but plaintiff denies this. At the same time, there was a steeltired wagon coming west and almost opposite plaintiff on the north side of the paved roadway. Defendant admits that it then became apparent to him that his automobile would overtake and pass plaintiff at a point where the wagon was also passing plaintiff, and that his automobile must pass between plaintiff and the wagon. The defendant says he had ample room to do this, though in fact he crowded the wagon partly off the paved street, and the result was that plaintiff, was knocked down and seriously injured. The defendant does not account for the collision with plaintiff, except to say that he is sure that the front part of his automobile safely passed him and he did not see it strike him; he concludes that plaintiff must have sidestepped over against the side of his car. Defendant's wife was in the seat with him on the side next to plaintiff, but we do not have the benefit of her evidence further than that, as part of the res gestu, it is shown that she then cried out that the man was struck and hurt. It was further shown that the paved roadway was 18 feet wide, and that when plaintiff was picked up his head was 2 or 3 feet south of the middle thereof, his body extending west or southwest, and he was about opposite the mud puddle which extended partly over the paved street. The defendant admitted that, after crossing the bridge and while passing over the 100 or more feet before overtaking the plaintiff, he did not slow his speed (perhaps increased it) and did not sound any alarm, though he noticed that plaintiff was keeping on his course and giving no heed to the approaching car. The physical injuries received, and other facts show, that plaintiff was struck with considerable force.

It was also shown by several witnesses that a few days after the accident, when defendant was asked how it happened, he said that as he crossed the bridge plaintiff looked around and he thought plaintiff saw him; that he saw the wagon coming west; that plaintiff was going on the north side of the mud puddle; that he sized up the distance between them, swerved his car close to the wagon, and took a chance; that when his wife screamed he knew he had struck him.

There was no plea of contributory negligence in the answer, and this issue, therefore, is not in the case. It was competent, however, for defendant to prove, as absolving himself from any imputation of negligence, that the accident was wholly due to plaintiff's fault and negligence or was a pure accident with no one to blame. This point is raised by defendant's demurrer to the evidence and is...