Freeman v. Green
| Decision Date | 06 June 1916 |
| Docket Number | No. 14364.,14364. |
| Citation | 186 S.W. 1166 |
| Parties | FREEMAN v. GREEN. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
"Not to be officially published."
Action by James M. Freeman against James Green. From a judgment for plaintiff, defendant appeals. Judgment affirmed.
Taylor & Chasnoff, of St. Louis, for appellant. George V. Reynolds, of St. Louis, for respondent.
This is an action for damages to plaintiff's automobile sustained by coming into collision with an automobile owned by defendant and operated by the latter's chauffeur. It is unnecessary to specially notice the pleadings. Defendant denied the allegations of plaintiff's petition, averred that the damage to plaintiff's automobile, if any, was directly caused by his own negligence, pleading the acts and omissions of plaintiff relied upon; and interposed a counterclaim for damages to defendant's automobile occasioned by the collision. There was a verdict and judgment for plaintiff on his cause of action and on defendant's counterclaim, and the case is here on defendant's appeal.
On February 16, 1913, at about 2 o'clock a. m., plaintiff, operating his own machine for the conveyance of passengers for hire, was driving west on Washington avenue, a public and much used street of the city of St. Louis, crossing Spring avenue, another public street of said city, when his machine came into collision with defendant's automobile which was proceeding south on Spring avenue, crossing Washington avenue. Both cars were of the limousine type, and none of the occupants of either, other than the drivers, saw the other car prior to the collision.
Plaintiff's testimony goes to show that, in approaching Spring avenue, he was driving on the north side of Washington avenue, a few feet from the north curb of the street; that he had disengaged his "clutch," and, with his foot upon the foot brake, was allowing the automobile to coast down a moderate grade, at a rate of speed not exceeding 10 miles per hour. In a deposition plaintiff stated that he was proceeding at a speed of "about" or "around" 15 miles per hour, but on the trial he asserted that the speed was that mentioned above. The "headlights" of plaintiff's automobile were not turned on, but his testimony is that the machine was equipped with two electric "side lights" which could be seen for a distance of two blocks. And the evidence is that eight street lamps were burning at the intersection of these streets, two at each of the four corners thereof. Plaintiff testified that, when he approached the northeast corner of the intersection of the streets mentioned, he looked both ways along Spring avenue, and, as he neared the latter street, he saw the defendant's automobile on Spring avenue north of Washington avenue, and approaching the latter street at a high rate of speed. It appears that on the northeast corner of the intersection of these streets stood a house located 48 or 49 feet back from the north curb of Washington avenue. Plaintiff says that he saw defendant's automobile soon after it emerged from behind this house; that he applied his brakes and made every effort to stop his car, and also sought to avoid the collision by turning aside. Plaintiff said:
Plaintiff further testified that defendant's chauffeur did not sound a horn or give other warning as he approached Washington avenue, and this is admitted by defendant's chauffeur.
Plaintiff's passengers in his car, testifying as witnesses in his behalf, asserted that plaintiff was driving on the north side of Washington avenue not far from the curb, proceeding slowly, or at a very moderate rate of speed; and that he sounded his horn as he approached Spring avenue.
Defendant's chauffeur testified that he was proceeding south on the west side of Spring avenue, and was driving about six miles an hour when he reached Washington avenue; that he "slowed down," and "looked to the right and left and saw no machine"; but that he did not sound his horn.
The occupants of defendant's car testified that it was proceeding at a moderate rate of speed as it approached Washington avenue. And in defendant's behalf there is testimony as to the position of the two machines after the accident, and respecting certain tracks and marks upon the street, indicating the movements of the machines prior to turning over. The evidence is that, after the two automobiles had turned over, they were west of the center line of Spring avenue and south of the center line of Washington avenue.
Plaintiff pleaded and introduced in evidence an ordinance of the city of St. Louis, providing that all vehicles going in an easterly or westerly direction shall have the right of way over all vehicles going in a northerly or southerly direction.
I. It is urged that the trial court erred in overruling defendant's demurrer to the evidence. It is said that the evidence conclusively shows that plaintiff was guilty of contributory negligence, and that for this reason the court should have peremptorily directed a verdict for defendant. But we think it quite clear that nothing in the record before us lends any support whatsoever to this contention.
II. It is urged that a verdict should have been directed for defendant, as requested, for the reason that the evidence failed to prove that the relation of master and servant, or of principal and agent, existed between defendant and the chauffeur in charge of defendant's automobile at the time of the accident, so as to make the doctrine of respondeat...
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