Meredith v. Claycomb

• Decision Date: 06 December 1919
• Docket Number: No. 2565.,2565.
• Parties: MEREDITH v. CLAYCOMB
• Court: Missouri Court of Appeals

216 S.W. 794

MEREDITH v. CLAYCOMB

No. 2565.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by Wayland Meredith against Stephen Claycomb. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Norman A. Cox and Hugh Dabbs, both of Joplin, for appellant.

Walden & Andrews, of Joplin, for respondent.

BRADLEY, J.

Plaintiff sued to recover for personal injuries received in a collision with defendant's automobile in the city of Joplin on September 9, 1915. A jury trial resulted in a judgment in favor of plaintiff in the sum of $4,000. The appeal was granted to the Supreme Court on the theory that the constitutionality of subdivision 9 of section 12, Laws 1911, p. 330, had been raised; but the Supreme Court, holding that the constitutionality of said section had not been timely raised, transferred the cause to this court. Meredith v. Claycomb, 212 S. W. 861. There are many assignments in appellant's brief, but we think the only ones which merit serious consideration are those relating to the demurrer to the evidence and alleged error in the instructions. The substance of the petition is stated in Meredith v. Claycomb, supra, and we deem it unnecessary to make an extended statement here.

Plaintiff alleges that at the time of the injury he was riding east on a motorcycle on Fifth street in the city of Joplin, and that defendant in an automobile was at the time traveling west on said street, and that it was the duty of defendant under the laws of the state to pass plaintiff on the right, but that this the defendant carelessly and negligently failed to do; that, as defendant approached an alley opening upon said street from the south, he suddenly turned without any warning or signal and drove his automobile towards this alley at the moment plaintiff was about to pass the same, resulting in the injuries complained of. The answer was a general denial, and what defendant denominates as a plea of contributory negligence. This plea is averred in the following language:

"Further answering, defendant states that, if plaintiff received the injuries complained of in his petition, the same were caused through no negligence on the part of defendant, but said injuries, if any, were caused by plaintiff's own negligence and want of care which directly contributed to cause said injuries."

The accident occurred on Fifth street in the city of Joplin between Connor avenue on the west and Jackson avenue on the east. Fifth street at the place of the accident is about 35 feet in width, and the alley about 18 feet in width which opens out upon the street from the south. Defendant lived near by, and his garage was on this alley. The collision happened about 6:30 o'clock p. m., and possibly later. Defendant had his lights burning on his automobile, but plaintiff had no lights on his motorcycle. Defendant turned in to Fifth street from Jackson avenue on the east, and drove west on the north side of the street until within a few feet of opposite the alley, and then without any warning of any kind turned south towards the alley. Plaintiff approached the alley from the west on the south side of the street. Plaintiff passed around a large moving van or wagon, also traveling east, some 60 or 80 feet west of the alley, and saw defendant approaching. According to plaintiff's evidence, he was running his motorcycle about 10 or 15 miles per hour, and defendant was driving his automobile about twice as fast. The two men on the moving van who were witnesses corroborate plaintiff as to the rate of speed. These two witnesses also corroborate plaintiff as to how far he was from the alley when he passed around the wagon. If the relative rate of speed as given by plaintiff is to be adopted, then when plaintiff was 60 feet west of the alley defendant must have been farther east thereof. Plaintiff says that when he passed around the moving van he saw defendant approaching, but at that time defendant was on the north side of the street, and plaintiff was on the south side. Plaintiff says that, after making this observation, he then looked to his right along the alley and the houses near by to see that no one was coming from the alley or a house, and that, when he again looked to his left, defendant had turned his car to the south and was approaching the alley and was right upon him, within a few feet of him, and that he swerved his motorcycle to the right, thinking that he could avoid collision, but that he was too late, and the automobile crashed into his motorcycle, breaking both bones of his leg below the knee, and resulting in serious injuries. Speaking of the collision, plaintiff says:

"I saw him from the time he was at Fifth and Jackson to the alley, and he was still going west. There is a lot of children usually playing around the alley. There was no one there then, but I wanted to be certain there wouldn't be anybody run out of any of the buildings around there and I wouldn't injure them, and I turned to look that way and probably traveled 5 or 10 feet, and looked again to see where the automobile was, and he was about 3 feet, almost directly to my left, and I kind of swerved to the right and thought I would be able to get ahead of him before he run into me, but he was going at such a rapid rate of speed I didn't have a chance but to move a foot or 2 feet onward, too late to get out of his way, and his right-hand front spring got my leg, and after breaking my leg smashed on into the back cylinder of my machine. * * * And I was thrown almost straight in front of the auto about 10 feet, and he was going at such a rate of speed I thought possibly he might not be able to stop, and to get out of his line of motion I hopped further west. * * * After I turned from the wagon going towards point of collision, I was paying attention to where he was going. I was probably 20 or 30 feet from the, alley when I looked again, and the automobile was then within a few feet of the alley still going west. I next saw it when it was about 3 feet away from me."

Defendant testified that he ran on the north side of the street to within about 10 feet of the east side of the alley, and began to make the turn to go in to reach his garage ; that when he went to make the turn he looked west on Fifth street to see if he could see any one coming hi that direction, and that he saw nothing except a wagon, but did not distinguish what kind of wagon it was, but that it looked like a high wagon, but that he saw nothing else; that he looked until he got turned, and when he got turned he looked south to see that he did not strike anything going into the alley; and that the first thing that attracted his attention was that his wife sitting to his right screamed, and threw up her hands, and that he immediately threw out the clutch, and jerked on his emergency brake, and just as he did that something or other broke his east light.

"I hadn't seen anything at that time, something or other broke my east light. I stopped the machine instantly, and when the crash came I got out and found Mr. Meredith down in front of my machine. That is the first I knew there was anybody anywhere near except the men on the wagon."

Defendant evidently did not see plaintiff approaching, and this may have been, as he says, because plaintiff did not have on his lights. But if it was as light and no later than several of the witnesses testified, then the fact that plaintiff did not have on his lights would not excuse defendant's failure to see him.

There is a great deal of testimony as to the time this collision occurred. The question of time was important to defendant, because plaintiff admitted that he did not have his lights burning, but attempted to excuse himself on the ground that it was not yet dark enough to require lights, and was not 30 minutes after sundown. The evidence is conflicting as to whether the accident occurred at a time when plaintiff was required as a matter of law to have his lights on. Plaintiff places the time of the accident between 6 and he quarter of seven, while defendant says he arrived home on that afternoon at about a quarter or half past 7. Plaintiff testified that the sun set at 6:17 on the day of the accident, while a high school teacher in the city of Joplin, who had charge of the weather department at the high school for the year 1915, testified that on September 9th of that year in the latitude of Joplin the sun set "pretty close" to 6:30.

Defendant did not plead the facts which he says constitute contributory negligence on the part of plaintiff. It is merely averred that, if plaintiff received the injuries complained of, the same were caused by no negligence on the part of defendant, but were caused by plaintiff's own negligence which directly contributed to his injuries. That this is not in compliance with the accepted rules of pleading an affirmative defense is apparent, and, if defendant expected to rely on contributory negligence as a defense, then the rules of good pleading require that the facts which go to constitute the alleged contributory negligence should have been pleaded. In Harrington v. Dunham, 273 Mo. loc. cit. 428, 202 S. W. 1066, in discussing the sufficiency of a plea of contributory negligence the plea is set out as follows:

"If the plaintiff...