Marshall v. Taylor

• Citation: 153 S.W. 527,168 Mo.App. 240
• Parties: MAT MARSHALL, Respondent, v. JOHN N. TAYLOR, Appellant
• Decision Date: 03 February 1913
• Court: Court of Appeals of Kansas

153 S.W. 527

168 Mo.App. 240

MAT MARSHALL, Respondent, v. JOHN N. TAYLOR, Appellant

Court of Appeals of Missouri, Kansas City

February 3, 1913

Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

N. T Gentry for appellant.

Stephens & Collier for respondent.

OPINION

JOHNSON, J.

--This is an action, commenced March 2, 1912, in the circuit court of Boone county for the recovery of damages plaintiff alleges he sustained in consequence of a collision between his wagon and an automobile owned by defendant. The petition alleges that the collision was due to the negligence of defendant's son who was operating the automobile and that plaintiff's damages resulted from personal injuries inflicted on him and from injuries to his horse, wagon and harness. The answer in substance is a general denial and a plea of contributory negligence. A trial of the cause to a jury resulted in a verdict and judgment for plaintiff and after his motions for a new trial and in arrest of judgment were overruled, defendant brought the case here by appeal.

Plaintiff, a negro, was driving east on Broadway, a paved street, and was approaching the intersection of Third street when defendant's automobile driven by his son, who was the only occupant, overtook plaintiff's wagon and in passing collided with it. There was a deep snow on the street but there was a well-beaten wagon path near the middle of the pavement and plaintiff kept his horse and wagon in the beaten road and did not attempt to turn out towards the right though warning of the coming of the automobile was given by the sounding of the horn. Plaintiff states he did not hear the horn on account of the noises made by his wagon and did not know of the approach of the automobile until the instant of the collision. The driver of the car, when he overtook the wagon, attempted to pass around it on the north side and in completing the movement turned into the beaten road ahead of the wagon to avoid, so he says, a pile of stones on the north side of the pavement. He cut in too close and the right rear wheel of the car struck the left front wheel of the wagon. Plaintiff was thrown from his seat into a pile of snow. His horse ran away and smashed the wagon and damaged the harness.

Defendant introduced in evidence an ordinance of the city prescribing "rules of the road." This ordinance contains the provisions of paragraph 3, section 8, of an act relating to motor vehicles, passed by the Legislature in 1911 (see Laws of Missouri, 1911, page 327). The rules thus prescribed are as follows:

"Whenever a person operating a motor vehicle shall meet in a public highway any other person riding or driving a horse, or horses, or other animals of any other vehicles, the person so operating such motor vehicle shall reasonably turn the same to the right of the center of such highway so as to pass without interference. When any such person so operating a motor vehicle shall overtake any such horse, animal or other vehicle, the rider or driver of such horse, animal or other vehicle, shall, as soon as practicable, turn aside to the right so as to allow free passage on the left hand side. Any such person so operating a motor vehicle shall, at the intersection of public highways, keep to the right of the intersection of the centers of such highways when turning to the right and pass to the right of such intersection when turning to the left."

Counsel for defendant argue that the demurrer to the evidence asked by defendant should have been sustained on the ground that the violation of the statute and ordinance by plaintiff which, obviously, was at least a contributory cause of his injury, precludes his recovery notwithstanding the driver of the car may have been negligent in the manner in which he attempted to pass around the wagon. We think the issue of whether or not plaintiff was guilty of an infraction of these rules of the road or was negligent in not turning to the right to allow the car to go by, is presented by his evidence as one of fact for the jury to determine. The inference is reasonable that his wagon which was old and dilapidated made a great deal of noise which with the added noise of the wheels crunching in the snow prevented him from hearing the horn, if, in fact, it was sounded. The statute contemplates and requires the driver of the wagon not to keep looking back in anticipation of being overtaken by a motor vehicle traveling in the same direction, but to act with reasonable diligence to give free passage to such vehicle on being informed of its approach behind him. If plaintiff did not know of the approach of the car and was in a situation where such lack of knowledge was compatible with due care on his part, he should not be held guilty of a violation of the statutory rules of the road or of contributory negligence. We repeat that the characterization of his conduct is presented by his evidence as an issue of fact and not of law.

That the evidence of plaintiff tends to accuse the chauffeur of negligence is not a debatable proposition. Realizing, as he did, that plaintiff was not going to turn to the right, he had no business running into a place where a collision with the wagon was unavoidable. The obstruction to his course, offered by the pile of stones in the street, gave him no excuse for injuring plaintiff. There was nothing to prevent him from stopping his car; he was not compelled to turn in ahead of plaintiff when he could see or should have seen that such movement could not be executed in safety. The fact is that he needlessly and heedlessly subjected plaintiff to risk of injury on the mere chance that he might be able to clear the wagon on "a close shave." To speculate and sport with the safety of another in such fashion is negligence, to say the least.

But it is argued that defendant should be exonerated from liability for the negligence of the chauffeur for the reason that the latter was using the car for a purpose of his own and not as the servant of defendant. The evidence on which this position is founded consists of the testimony of the chauffeur who, as stated, is the son of defendant. The automobile was kept by defendant for the use and pleasure of his family of which it appears the son, who was twenty-one years old, was a member. The young man was not employed by his father as a servant for hire to run the car, but had performed the duties of a chauffeur for the family and was permitted to use the machine for his own pleasure and convenience as well as in the service of other members of the family. He testified: "I was running the car myself and came down town on it to keep from walking; nobody was with me." He does not explain whether he came down town on his own affairs or on some business of his father or of some other member of the family for whose use the machine was provided.

In the recent case of Daily v. Maxwell, 152 Mo.App. 415 133 S.W. 351, we dealt with a case where the minor son of the owner of the car was the family chauffeur but on the occasion in question was using it for his own pleasure. We recognized the rule that the owner of the automobile, who was not present at the injury, cannot be held liable except it be shown that the person in charge not only was his servant and agent but at the time was engaged in the business of his service. But further we held that the use of the car by the minor son for his own pleasure and...