O'Donnell v. O'Neill
| Decision Date | 14 April 1908 |
| Citation | 109 S.W. 815,130 Mo.App. 360 |
| Parties | O'DONNELL, Appellant, v. O'NEILL, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. James F. Withrow Judge.
AFFIRMED.
Judgment affirmed.
Joseph A. Wright and A. A. Paxson for appellant.
(1) The care required of the automobile operator is commensurate with the risks to which he exposes others on the highways, and demands a vigilant watch and stopping when danger is imminent. McFern v. Gardner, 121 Mo.App. 1; Ward v. Meredith, 220 Ill. 66; Christy v. Elliott, 216 Ill. 45; Strand v. Grinnell Automobile Co (Iowa), 113 N.W. 488; Shinkle v. McCullough, 116 Ky. 960. (2) If the automobile emitted loud noises and approached the horse in a threatening manner, the defendant cannot escape liability on the ground that such noises and movement were usual, for he might reasonably have apprehended danger; bringing this case by analogy within the rule laid down in cases where locomotives and other objects and sounds frighten horses. Feeny v. Railroad, 123 Mo.App. 420; Phelan v. Paving Co., 115 Mo.App. 423; Brown v Railroad, 89 Mo.App. 192; Water Co. v. Whiting, 58 Kan. 639.
Geo. T. Priest and T. E. Francis for respondent; Boyle & Priest of counsel.
The court did not err in sustaining defendant's demurrer to the evidence on the theory that the evidence disclosed no negligence on the part of defendant. Defendant had a lawful right to operate his machine upon the street at the time and place in question and he was not liable for injuries resulting to plaintiff on account of his horse taking fright at the automobile, unless he continued to operate his machine after he saw, or could have seen by the exercise of ordinary care the fright of plaintiff's horse. There being no evidence that he operated his machine so as to frighten said horse after he discovered, or could have discovered, said fright by the exercise of ordinary care, there is no negligence shown on his part and, therefore, the demurrer was rightly sustained. Nason v. West, 65 N.Y.S. 651; Macomber v. Nichols, 34 Mich. 212; House v. Cramer, 112 N.W. 3; Holland v. Bartch, 123 Ind. 46; Indiana Springs Co. v. Brown, 74 N.E. 615; Thompson v. Dodge, 58 Minn. 555; Molyneaux v. Railway, 81 Mo.App. 25; Amusement Co. v. Brockschmidt, 17 Am. Neg. Rep. 498; Stanton v. Railway, 91 Ala. 382.
--Appellant filed this action to recover damages for a personal injury alleged to have been due to respondent's negligence in operating an automobile. The accident occurred October 18, 1902, in the forenoon, and on West Pine Boulevard in the city of St. Louis, at a point between Spring and Vandeventer avenues. It is alleged the automobile emitted loud hissing and puffing sounds caused by using gasoline in the propelling of the machine, and by the exhaust of gases in the engine propelling it; that the automobile was large, bright in color and different from the other vehicles used in the streets, and the noise it emitted and its appearance were likely to frighten horses, especially when the machine was driven toward them without warning. It is further stated that while appellant was driving in his buggy along Pine street, respondent's automobile was standing on the south side of said street near the curb; that as appellant was passing the machine, respondent who was in charge thereof, while he saw, or by the exercise of ordinary care could have seen appellant driving in close proximity, suddenly and carelessly ran the machine near appellant's horse and within two feet of the same; and while the machine was being thus run toward appellant's horse, respondent carelessly and negligently permitted loud, violent and hissing sounds to escape from it, frightening appellant's horse, which ran away, causing the buggy to strike the sidewalk and throw plaintiff to the ground. The answer is a general denial. A line of carriages was drawn up on either side of the street in front of a residence where a funeral was in progress. Respondent was attending the funeral and had gone there in his automobile. The machine was on the south side of Pine street against the curb and to the west of the line of carriages. Between the row of carriages on the north and south sides of the street was a passageway about ten feet wide, through which vehicles could go. Appellant was driving through said defile behind a coal wagon and eight or ten feet to the rear. He was going westward. When the coal wagon had passed out of the defile and appellant's buggy was in the act of passing out, respondent started in a northerly or northeasterly direction across the street in his machine, thus bringing it in front of and not far from the head of appellant's horse. The noise and sight of the machine frightened the animal, which reared and almost immediately ran away, throwing appellant out of the buggy. As soon as the horse gave signs of fright, respondent backed his machine and stopped. According to the testimony of plaintiff and all the witnesses who spoke about the matter, the noise of the automobile was not unusual but like that emitted by any gasoline automobile. At the conclusion of the testimony for appellant the court gave an instruction that under the law and evidence the verdict must be for respondent; whereupon appellant took a nonsuit with leave to move to set the same aside; which motion having been made and overruled and judgment entered against appellant, the present appeal was prosecuted.
We thought on the argument this appeal must fail and a reading of the record and the cases in point has confirmed this opinion. The decisions cited for appellant, and others we have looked into which support a finding of negligence in the management of an automobile or engine, whereby some one was injured, all contain and turn on the fact that the person in charge of the machine, after he saw the danger to which another was exposed from it, might have averted the accident by stopping or...
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