McFern v. Gardner

• Citation: 97 S.W. 972,121 Mo. App. 1
• Parties: McFERN v. GARDNER.
• Decision Date: 27 November 1906
• Court: Court of Appeal of Missouri (US)

97 S.W. 972

121 Mo. App. 1

McFERN v. GARDNER.

St. Louis Court of Appeals. Missouri.

November 27, 1906.

Rehearing Denied December 11, 1906.

1. HIGHWAYS — USE OF HIGHWAY — COLLISION — NEGLIGENCE — EVIDENCE — QUESTION FOR JURY.

Evidence, in an action for the death of a traveler in a public highway in a collision between his vehicle and an automobile traveling in opposite directions, examined, and held, that the question of the negligence of the chauffeur in turning the automobile to the left instead of to the right, as expressly required by Rev. St. 1899, § 9458, in failing to discover the vehicle, and in driving the automobile at a dangerous rate of speed, was for the jury.

2. SAME—DRIVER OF AUTOMOBILE—CARE REQUIRED.

It is the duty of a chauffeur, driving an automobile on a public highway in a populous city, to keep a vigilant watch ahead for vehicles and pedestrians, and, at the first appearance of danger, to take proper steps to avert it.

3. SAME—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Evidence, in an action for the death of a traveler on a highway in a collision between his vehicle and an automobile traveling in opposite directions, examined, and held, that the question of the traveler's contributory negligence was for the jury.

4. APPEAL—REVIEW OF RULINGS IN EXCLUDING EVIDENCE—EXCEPTIONS—NECESSITY.

Where the court prevented a witness from answering a question, and the bill of exceptions and the question did not indicate what the answer would have been, the ruling would not be reviewed on appeal.

5. TRIAL—PRESENCE OF COUNSEL—SELECTION OF JURY.

In the trial of a cause, the attorney for defendant first appeared after the jurors had been called and sworn on their voir dire, when he informed the court that he was engaged in another trial in another court. The court directed counsel to proceed with the examination of the jurors. The counsel for defendant was absent from the courtroom until the examination of the twelfth juror was finished by plaintiff's counsel, when the trial proceeded. Held not to show that an opportunity was refused to defendant's counsel to examine the 12 jurors on their voir dire.

6. SAME—REMARKS OF JUDGE.

At the opening of the trial of a case set for trial, counsel for defendant informed the court that he was engaged in another trial in another court, and requested a continuance. The court refused the request, and stated that the case had been specially set; that counsel had, on separate occasions, stated that he would be present and try the case. Held, that the language of the court was not prejudicial to defendant as leading the jury to believe that counsel had acted in bad faith.

Appeal from St. Louis Circuit Court; Daniel D. Taylor, Judge.

Action by Annie A. McFern against Frederick

D. Gardner. From a judgment for plaintiff, defendant appeals. Affirmed.

John Talty, for appellant. Jos. A. Wright, for respondent.

BLAND, P. J.

On November 11, 1904, at 6:30 p. m., Alfred L. McFern, plaintiff's deceased husband, and Commodore Kelly were driving a light, low, one-horse buggy (a runabout) on Forest Park Roadway. The buggy collided with defendant's automobile a little north of the intersection of the roadway with Forest Park Boulevard. The buggy was traveling north and the automobile south. The shock of the collision threw both McFern and Kelly into the street, causing injuries to McFern from which he died a few hours thereafter. The petition alleges the collision, resulting in the death of plaintiff's husband, was caused by the negligence of defendant. The answer was a general denial and an affirmative plea of contributory negligence. Verdict and judgment for plaintiff for $3,000. Defendant appealed.

Defendant moved the court to peremptorily instruct the jury that plaintiff could not recover, and assigns as error the refusal of the court to so instruct.

1. Every litigant has a right under the Constitution, when he has offered substantial evidence tending to prove his case, to have it submitted to the jury, and, for the purpose of determining whether or not there is substantial evidence to submit to the jury, the testimony of plaintiff as offered should be accepted as true and every reasonable inference in his favor should be drawn therefrom. Ladd v. Williams, 104 Mo. App. 390, 79 S. W. 511, and cases cited. It was not enough to show an accident and injury. A causal connection must be established between the accident and the negligence charged in order to make out a case for the jury. Warner v. Railway, 178 Mo. 125, 77 S. W. 67; Conner v. Railroad, 181 Mo. 397, 81 S. W. 145. A correct application of these well-settled principles of law to the facts in the case in hand requires a somewhat detailed statement of plaintiff's evidence and of some of the physical facts bearing upon this evidence. Kelly testified McFern was seated on his left, but had the lines in his hands and was doing the driving when the accident happened; that they were traveling north on the east side of Forest Park Roadway at a speed of about eight miles an hour; that when they were near, but a little north of the intersection of Forest Park Roadway with Forest Park Boulevard, he saw an automobile, 50 or 60 feet away, coming south on the east side of the road, at a speed of from 20 to 25 miles an hour; that there were no lights on the buggy or automobile, and the night was foggy and "awful dark." We quote the following from Kelly's testimony: "Q. Were you in a position that you could see? A. Yes, I thought I did before McFern did, at least I thought so. I think pretty near the automobile when I saw it as I did, for the reason I was sitting as now—turned around of course. The horse's head being reined up, sitting in the low runabout. I was afraid he didn't see it as quick as I did. I made a jump for the lines. With that he threw the horse to the right. I never touched the lines. I think when I grabbed for the lines made Mac realize. He already threw the horse to the right. Q. Which way did he pull the horse? A. Pulled to the left. I jumped to the left when he threw the horse to the right, threw it in front of the automobile. * * * Q. Now, Mr. Kelly, was that automobile running fast or slow when you saw it? A. It was running fast. Q. Have you had occasion to observe the speed of horses, automobiles, and moving objects? A. Well, of course I have timed horses. I never timed engines or anything of that kind but I don't think it could have been running less than 20 miles an hour, because it was so quick onto us after I saw it. Q. What time elapsed from the time you saw the automobile until the crash? A. Well, I just jumped, made an effort to jump at the lines. Whether I sat down or got knocked down, I was down so quick I couldn't tell you. * * * Q. Did the chauffeur turn the automobile in any direction after it came in sight? A. Turned it right into us; McFern threw the horse to the left. The automobile, after he threw the horse right, threw it right in front, threw the horse this way [indicating] over to the left. Q. Which way did the chauffeur turn the automobile? A. The automobile turned right into us. Q. To the right? A. Certainly. Q. Was the automobile east or west of you the first time you saw it? A. East. Q. How fast were you driving the horse at the time of that accident? A. Well we were driving, I suppose, a gait of about eight miles an hour, driving along a nice little gait. Q. A road gait? A. Yes, sir. Q. Were you unconscious when the automobile hit the buggy? A. The first thing I knew they were dressing my head where I was cut on the side." The horse escaped injury. The right forewheel of the buggy was crushed by coming in contact with the automobile. One of the lamps on the front of the automobile and the glass protector were crushed, the broken pieces of glass falling in the road 15 or 20 feet west of the east gutter. The buggy was pushed over near the center of the road by the force of the collision. The road was 50 or 60 feet wide. The automobile weighed 1,800 pounds and was propelled by steam. The horn was not sounded. The evidence tends to show that an automobile traveling 25 miles per hour could be stopped with safety to the occupants in 30 feet, one traveling at a speed of 20 miles per hour in 25 feet, and one traveling 4 to 6 miles per hour in 10 feet. Defendant and his wife were in the automobile at the time of the accident, and defendant testified the power was shut off and they were traveling very slowly, getting ready to turn into Forest Park Boulevard to go to his home about 300 yards distant. John C. Horner, the chauffeur, who was driving the machine, testified he was going very slow, three or four miles an hour; that he neither saw or heard the buggy until it struck the right side of the machine. Defendant also testified the buggy struck the right side of the automobile, and that the buggy collided or ran into the machine.

Section 9458, Rev. St. 1899, provides: "When any persons traveling with any carriage, wagon or other vehicle shall meet on any turnpike, road or public highway in this state, the persons so meeting shall seasonably turn their carriage, wagon or other vehicle to the right of the center of the road, so as to permit each carriage, wagon or other vehicle to pass without interfering or interrupting, under the penalty," etc. Kelly testified the collision took place north of the intersection of Forest Park Boulevard with Forest Park Roadway. Defendant's testimony is to the effect they were getting ready to turn the automobile into Forest Park Boulevard, not that they were turning in. On this evidence it was defendant's duty to have turned to the right, and west of the center of the road on meeting the buggy, if the buggy was, or could have been, seen by the exercise of ordinary care; and Kelly's testimony, that he saw the automobile when it was 50 or 60 feet from him and that it had no lights, is some evidence tending to show the buggy could have been seen that...