Everhardt v. Garner
| Decision Date | 28 December 1936 |
| Docket Number | No. 5694.,5694. |
| Citation | 100 S.W.2d 71 |
| Parties | EVERHARDT v. GARNER et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.
"Not to be published in State Reports."
Action by T. C. Everhardt against Homer L. Garner and another. Judgment for plaintiff, and defendants appeal.
Reversed and remanded.
Henson & Woody, of Poplar Bluff, for appellants.
O. A. Tedrick, L. E. Tedrick, and Phillips & Phillips, all of Poplar Bluff, for respondent.
This is an action for personal injuries, alleged to have been received by respondent, in an automobile accident, which occurred on June 11, 1934, on United States highway 67, at a point about three miles northwest of Poplar Bluff, Mo.
The evidence shows that the highway at a point where the accident occurred runs practically east and west, and at the point of the accident was a short curve in the highway. For quite a distance west, and coming down to this curve, the highway slopes to the east, and is paved with concrete at this point, the slab being about 16 feet wide. On the south side of the road, and on the outside of the curve, the shoulder was about six or eight inches lower than the slab, the slab being perpendicularly about that much higher than the shoulder.
The plaintiff filed a previous suit in the same court, against the same parties, which he later abandoned, and filed a second petition, upon which he now seeks to recover. The petition in the first suit did not allege an actual collision of the two automobiles in question, but alleged that the plaintiff was "crowded off of the highway by the defendant's automobile."
The second petition, upon which this case was tried, alleged that the defendant failed to keep a vigilant watch, as required by law, for vehicles and persons in front of the course of his automobile, and that he carelessly drove his automobile on the south or left-hand side of the center line of said highway, with his attention engrossed on matters other than driving his automobile, and the traffic ahead thereof; that he discovered or could have discovered by the exercise of proper care, the perilous position of plaintiff's car in front of the car which he was driving, but failed and neglected to use all reasonable means at hand to prevent a collision, and "as a result thereof the automobile of the defendant struck the automobile of the plaintiff."
The defendants in their answer pleaded that the plaintiff carelessly and negligently drove and operated his automobile at a high and dangerous rate of speed on said highway, and at such a rate of speed that he completely lost control thereof. That he carelessly, negligently, and recklessly drove and operated his automobile, at said time and place with his mind engrossed upon matters other than driving of said automobile, the highway ahead of him and the traffic thereon. That he carelessly and negligently drove his automobile at a high and dangerous rate of speed, lost control of his automobile while rounding a sharp curve in the said highway, and ran off of the highway and into a ditch.
Defendants offered the petition in the first case as evidence in the present case, but upon objection of counsel for plaintiff, the petition was excluded by the court.
One of plaintiff's counsel undertook to explain the change in the allegation of negligence on the ground that the facts detailed to him by plaintiff were not correctly stated in the first petition.
The trial resulted in a verdict in favor of plaintiff, in the sum of $5,000.
Defendants filed their motion for new trial, which motion was overruled, and the cause comes to this court on appeal by defendants.
The evidence of both parties is conflicting as to the positions of their automobiles on the highway, each placing himself in the proper position, or to the right of the center of the highway. The evidence is also conflicting as to the speed of the two automobiles, making a jury question as to contributory negligence of plaintiff and primary negligence of defendant. The question involved in this case is solely one for the jury, as to whether or not the plaintiff could recover or whether he was barred by contributory negligence. Therefore, if the case was properly tried, it is our duty to sustain the verdict of the jury. We must examine the case for errors in the instructions, and in the admission or rejection of testimony; and other errors, raised by appellants' assignments of error.
While it is true that only the plaintiff testified as to a contact or collision between the automobiles, and probably the weight of the evidence is against the plaintiff on this point, yet the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and an issue of fact was made on this point. Under the allegations and the proof, it was a question for the jury to determine how the accident occurred and whether or not the plaintiff's injury was proximately caused by defendant's negligence.
The appellants criticize plaintiff's instruction P-1 on the theory that this instruction purports to cover the whole case, and directs a...
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... ... See, McCurry v ... Thompson, 352 Mo. 1199, 181 S.W.2d 529; Rhoads v ... Rhoads, 342 Mo. 934, 119 S.W.2d 247; Everhardt v ... Garner, (Mo. App.), 100 S.W.2d 71, 73. We are further of ... the opinion that the allegations concerning the effective ... date of the ... ...
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