Holt v. Bartlett
| Decision Date | 23 January 1928 |
| Docket Number | No. 16110.,16110. |
| Citation | 1 S.W.2d 1030 |
| Parties | HOLT v. BARTLETT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.
"Not to be officially published."
Action by Charles E. Holt against Louise Bartlett. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Culver, Phillip & Voorhees, of St. Joseph, for appellant.
Duvall & Boyd, of St. Joseph, for respondent.
Suit to recover for alleged personal injuries caused by a collision between defendant's automobile and a motorcycle which plaintiff was riding at the time of the collision. Plaintiff recovered judgment in the sum of $1,500. Defendant appealed.
The collision occurred on Sixth street in the city of St. Joseph on July 30, 1924. Sixth street runs north and south, and two car tracks are laid in the center thereof. The substance of plaintiff's petition is that plaintiff was riding a motorcycle south along the west of the center of Sixth street, and that defendant was driving an automobile northward on said street and negligently drove said automobile west of the center of said street and caused and permitted it to collide with the motorcycle which plaintiff was riding, thereby causing serious and painful injuries to plaintiff.
The answer pleads (1) a general denial; and (2) contributory negligence in that plaintiff's injuries, if any, resulted from the negligence of plaintiff in driving the motorcycle at a dangerous and excessive rate of speed and in driving it east of the center of said street to and against the side of defendant's automobile.
Plaintiff testified that as he rode off the south end of the viaduct on Sixth street he observed a Ford car 75 or 80 feet ahead of him and traveling south on said street at 15 or 20 miles per hour; that he overtook the Ford car and turned out to pass it on the east side and then observed defendant in her car driving north on said street; that she was about 100 to 150 feet south of him when he first saw her; that after he turned out to pass the Ford car and saw defendant, his motorcycle traveled 60 or 70 feet before the collision, and defendant's car traveled about the same distance in that time; that the collision occurred about 150 feet south of the south end of the viaduct which plaintiff had ridden over as he proceeded southward; that when the collision occurred the rear wheel of the motorcycle was about even with the front wheels of the Ford car; that as defendant drove northward the left wheels of her car were on the west side of the west rail of the east car track, and as she came near him her car turned northwest toward him and he turned to the southwest to avoid a collision, but her car struck the rear wheel of his motorcycle and knocked him down; that he made no special effort to increase his speed and pass the car because he thought defendant had plenty of clearance on the other side; that he had 4½ feet between him and the Ford car in which he could have swerved and gotten out of the way; that he could have stepped on the gas and passed the Ford car and then had the entire west side of the street; that he ran along about 4½ feet from the Ford car the entire distance of 60 or 70 feet; that he could have swerved over 2 feet to the right; that there would have been no collision if defendant had gone straight ahead instead of turning to the northwest; that he pulled around as much as he could to keep from getting in the path of the Ford car going south.
Milton Davis, called as a witness by plaintiff, testified that at and prior to the collision he was driving a truck north on Sixth street; that defendant driving an automobile in the same direction passed him at a point about 300 feet south of the place where the collision occurred; that she drove about the center or a little to the left of the center of the street until after the collision; that as plaintiff was attempting to pass the Ford car, he was trying to clear himself, holding as close to the Ford car as he could; that the street was rough and he could hardly drive on it; that between the west rail of the west car track and the west side of the street there was space for two automobiles to stand abreast; that defendant was traveling pretty near the only place she could travel on account of the streets on the east and west side being torn up; that it was so rough that it was a bad place to drive an automobile, "going and coming"; that the Ford was traveling along the extreme west edge of the pavement about 18 inches from the fence — that was the only driveway you had — either that or up in the center of the track; that the motorcycle was between the rails of the west track when the collision occurred.
Defendant testified that at the time in question she was driving north on Sixth street, straddling the east rail of the east car track along the curve leading onto the Sixth street viaduct; that she was driving 18 or 20 miles per hour; that plaintiff was coming south on a motorcycle; that he looked like he was heading right at her; that she stopped her car as quickly as she could and he swerved over to the west; that as he swerved to the west, the Ford car either grazed him or the momentum of the motorcycle threw the motorcycle back to the east track; that at the time the motorcycle struck the west side of her car, the left rear wheel of the automobile was across the east rail; that the motorcycle made a mark on the running board of the automobile; that she stopped her car within 5 or 6 feet, and, when stopped, the car was straddling the east rail of the east track; that she had to move her car in order to let a north-bound street car on the east track pass; that her automobile was not on the west side of Sixth street immediately before or at the time of the collision; and that she did not pull over to the west side and run into the motorcycle. Defendant further testified:
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