Gregory v. Jenkins

• Decision Date: 08 December 1931
• Docket Number: No. 21722.,21722.
• Citation: 43 S.W.2d 877
• Parties: GREGORY v. JENKINS.
• Court: Missouri Court of Appeals

43 S.W.2d 877

GREGORY v. JENKINS.

No. 21722.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Action by Sarah Gregory against Gordon Jenkins. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Walter Wehrle and Campbell Allison, both of Clayton, for appellant.

Fred Berthold and Emery W. Chase, both of St. Louis, for respondent.

BECKER, J.

Defendant appeals from judgment against him in an action for damages for personal injuries.

Plaintiff was injured while she was a passenger in an automobile as the result of a head-on collision between the automobile in which she was riding and an automobile owned and driven by defendant. The collision occurred about midnight of September 11, 1929, on Manchester road immediately west of Berry road in St. Louis county.

Plaintiff's case was submitted to the jury upon the assignment of negligence that said defendant carelessly and negligently violated paragraph (b) of section 21 of the Laws of Missouri 1921, Extra Session, p. 93, in this, to wit, that said defendant, while operating his automobile westwardly on Manchester road, and in approaching the automobile in which plaintiff was riding, failed to keep his automobile as close to the right-hand side of the highway as practicable, and, as a direct result thereof, the defendant's automobile violently collided with the automobile in which plaintiff was riding, and as a direct result thereof plaintiff sustained injuries.

The answer was a general denial.

Appellant's first assignment of error is the overruling of defendant's demurrer offered at the close of the case. This contention cannot be sustained.

The demurrer to plaintiff's evidence accepts it as true where not self-evidently perjured or opposed to the physics of the case, and the defendant's testimony, where contradicted, is taken as false, and plaintiff's case is entitled to the benefit of every reasonable inference of fact arising on all of the proof. Lindsay v. Shaner, 291 Mo. 297, 236 S. W. 319. And, as has been specifically pointed out in Gould v. R. R. Co., 315 Mo. 713, loc. cit. 723, 290 S. W. 135, the jury has the right to believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances in the case; and only when the record discloses no substantial evidence tending to prove the negligence complained of can we hold, as a matter of law, that defendant's demurrer should have been sustained. Keppler v. Wells (Mo. Sup.) 238 S. W. 425, loc. cit. 429.

There is evidence in the record which, if believed, tends to prove that plaintiff was riding as a passenger in an automobile owned and driven by Raymond Stevens, traveling eastwardly on Manchester road near the south edge of the concrete, at a speed of about 20 miles per hour; that both headlights of the car were burning; that the center of Manchester road is marked by a black line; and that the automobile in which plaintiff was riding was at all times to the south of said black line. The automobile driven by defendant was traveling westwardly on Manchester road at about 30 to 35 miles per hour, and undertook to pass an automobile ahead of it which was traveling westwardly upon the road and passed over to the south side of the road at a time when the automobile in which plaintiff was riding was but 10 to 15 feet away, colliding with said automobile, and causing plaintiff to be thrown from the automobile onto the concrete pavement.

Raymond Stevens, a witness for plaintiff, testified that he was driving the automobile in which plaintiff was riding at the time she met with her injuries; that he was driving the car "as far on the right-hand side of the road as I could. * * * I couldn't go no farther. I was right on the edge of the concrete. I never drove over the line." He further testified that he saw a car being driven westwardly on Manchester road and saw the defendant's car come out from behind it and try to pass it; that the defendant was but 10 feet from him when he first saw him.

Plaintiff herself testified that the car in which she was riding remained at all times on the south side or right-hand side of the road; that its headlights were burning; that immediately after the collision she saw defendant's car, and it was on the south side of the road.

Lilly Anderson testified she was riding in the same car with plaintiff, and that the car at all times was kept on the right-hand side of the road, and immediately after the collision defendant's car was "half way on the south side and half way on the north side. The front part of the Ford on the south side of the black line and the back part north of the line."

Madeline Lee, a witness for plaintiff, testified that she was riding in the car with the defendant, and just prior to the accident the defendant was driving 30 to 35 miles per hour; that the defendant, at the time of the collision, was in the act of passing another automobile moving in a westwardly direction. "We were riding west and there was a car ahead of us and he stepped on the gas and pulled around to pass the other car, and he pulled to the south side of the other, then I saw the lights, then came the crash. * * * Yes, sir, Mr. Jenkins was on the right-hand side of the road and he pulled over to the left to pass this car and the accident happened. He did not pass it."

Albert Gredell, a police officer, testified that he examined the car in which plai...