Hall v. Compton
| Decision Date | 02 March 1908 |
| Citation | 108 S.W. 1122,130 Mo.App. 675 |
| Parties | PEARL H. HALL, Respondent, v. WILLIAM R. COMPTON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
Dysart & Mitchell for appellant.
(1) It was error for the court to refuse defendant's instruction by way of demurrer to the evidence. (2) This is a case in which the trial court should have required the plaintiff to elect upon which count and cause of action he would proceed. The first count was based upon the violation of the city ordinance, simply and purely. The second count was at common law.
Guthrie & Franklin and Davis & VanCleve for respondent.
(1) The court did not err in refusing to require plaintiff to elect upon which of the two counts of his petition he would go to the jury. Maguire v. Transit Co., 103 Mo.App. 459; Pattison's Missouri Code Pleading, chap. 35, secs. 861 862, p. 441; Sciter v. Bischoff, 63 Mo.App. 157; Bank v. Wall Paper Co., 77 F. 85; Rainard v Railroad, 164 Mo. 270.
--A horse which plaintiff was driving along a public street in the city of Macon took fright at a passing automobile suddenly jumped to one side and tilted the vehicle to which it was hitched sufficiently to throw plaintiff from his seat to the ground and injure him. Plaintiff sued the owner of the automobile for damages, alleging that the horse was frightened by the negligent manner in which the machine was operated, and recovered judgment in the sum of two hundred dollars.
It appears from the evidence introduced by plaintiff that on July 7, 1905, plaintiff and two other men, his guests, were driving northward on Rubey street in a single-seated runabout drawn by one horse. The conveyance belonged to plaintiff who was doing the driving and who was seated between his companions, partly on their knees. He drove in a walk along the east side of the street which was paved with brick to a width of about twenty feet and, at the place of injury, was on an embankment some three or four feet above the level of the adjacent lots. His horse was nine years old, very gentle and accustomed to being driven in the city and to meeting and being passed by automobiles. A two-seated gasoline motor car, owned and operated by defendant and occupied by five persons, approached from the north and without checking speed or deviating from a course in the middle of the street ran close to plaintiff's horse, causing it to jump suddenly and unexpectedly to the right and thereby to run the wheels, on the east side of the vehicle, part way down the embankment on that side of the street. Plaintiff was thrown to the ground and sustained injuries the nature and extent of which it is not necessary to state. The automobile in passing, made a noise and emitted an odor common to machines run by gasoline power and the speed at which it passed is variously estimated by plaintiff and his witnesses at from fifteen to twenty miles per hour. The horse showed neither fright nor restiveness until the forward end of the machine reached a point on a line with its head and its sudden fright surprised the occupants of the runabout as well as those of the automobile. Defendant and his witnesses testified to a different state of facts from those just stated. They say that the automobile kept well to the west side of the street, did not come in close proximity to the horse in passing; that its speed did not exceed eight miles per hour and that it could not be run fast at that place because of the facts that it was in bad order and had just climbed a hill on the gearing for low speed. Further, they said defendant paid close attention to the way ahead of him and, observing no indication of nervousness either on the part of the horse or of the occupants of the runabout, supposed he could proceed without endangering their safety. The charge of negligence in the petition is "that the defendant so carelessly, negligently and recklessly operated, managed and drove his said automobile while approaching and meeting this plaintiff upon said highway as to scare and frighten plaintiff's horse and to cause it to become unmanageable and to run away with plaintiff; that defendant carelessly, negligently and recklessly managed, operated and ran his said automobile at so dangerous, reckless and negligent high rate of speed; that he carelessly, negligently and recklessly ran said automobile at, toward and so near this plaintiff and his said horse and at so great a rate of speed as to cause said horse to become frightened, scared and unmanageable and to run away with plaintiff; that defendant negligently, carelessly and recklessly ran and operated his said automobile so close to the plaintiff's vehicle as to occupy nearly the entire road and to drive plaintiff's horse and buggy from the same. "
The petition contained two counts. In the first an ordinance of the city relating to automobiles was pleaded, in which it is provided "that it shall be unlawful for any person to operate any vehicle propelled by steam, electricity, gas, gasoline or any other motive power over the streets, alleys and avenues of said city of Macon, Missouri, at a greater rate of speed than nine miles per hour," and the gravamen of the cause asserted therein is the negligent breach of said ordinance. In the second count, the ordinance is not pleaded and the cause stated is common law negligence. Before the introduction of testimony, defendant asked the court to require plaintiff to elect on which count or cause of action he would proceed, but the court overruled the motion. The ordinance was received in evidence over the objection of defendant, but at the close of the evidence, plaintiff voluntarily dismissed the first count and the issues submitted under the instructions given were those relating to the common law action pleaded in the second count. The answer of defendant contained a general denial and the plea that the injuries of plaintiff "if any, were the result of the negligent manner in...
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