Lumb v. Forney

• Decision Date: 18 December 1916
• Docket Number: No. 11961.,11961.
• Parties: LUMB v. FORNEY.
• Court: Missouri Court of Appeals

190 S.W. 988

LUMB v. FORNEY.

No. 11961.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Suit by John Lumb against Frank Forney. The jury found against plaintiff on his cause of action and against defendant on his counterclaim, and from judgment sustaining plaintiff's motion for new trial, defendant appeals. Judgment affirmed.

M. J. Lilly and J. W. Wight, both of Moberly, for appellant. Aubrey R. Hammett, of Moberly, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages resulting from the wrecking of his automobile in a collision with an automobile owned and operated by defendant. Defendant filed an answer and a counterclaim for the damages to his car in the collision which he alleges was caused by negligence of the driver of plaintiff's car. The jury found against plaintiff on his cause of action and against defendant on his counterclaim, but the court afterward sustained plaintiff's motion for a new trial on the grounds stated in the order that "the court erred: First, in giving defendant's instruction No. 1," and, second, "in amending plaintiff's instruction No. 4 by inserting therein the words `and without negligence on the part of the driver of plaintiff's car contributing thereto,' thereby submitting to the jury the issue of contributory negligence on plaintiff's part whereas no such issue was raised by the pleadings." Defendant appealed from the judgment allowing the new trial.

The collision, in which both cars were badly injured, occurred at 11:30 p. m. July 9, 1914, near Huntsville on the Huntsville and Moberly public road at a point near a slight curve in the road around the dump of an abandoned coal mine. The curve and some weeds at the roadside offered obstructions to the view of the road ahead, but the collision occurred after defendant's car, which was going west, had rounded the curve, and the evidence of both parties shows beyond question that the headlight of each car was visible to the driver of the other in ample time for the collision to have been avoided had both observed even reasonable care, and points to negligence of one or the other of the drivers as the proximate cause of the injury. The evidence of plaintiff tends to show that the driver of his car, which was occupied by six persons, drove at moderate speed along a course on the extreme right of the traveled roadway; that defendant's car rounded the curve at high speed on the wrong side of the road, and, pursuing a sinuous course on that side, bore down on plaintiff's car, striking it broadside about the middle; that defendant was under the influence of intoxicants, and that he failed to signal for the curve. On the other hand, defendant's evidence throws the sole blame for the collision on the driver of plaintiff's car. It tends to show that defendant ran his car as far over as possible on the right side of the road, that the other driver approached on that side, and just before the collision, swerved his car around towards the southeast, but not in time to prevent the collision.

It was conceded by plaintiff's witnesses that the driver of his car did not blow a signal for the curve on his horn. The answer does not plead contributory negligence, and the parties in their evidence proceeded on the...