Meredith v. Claycomb

• Decision Date: 02 June 1919
• Docket Number: No. 19897.,19897.
• Parties: MEREDITH v. CLAYCOMB.
• Court: Missouri Supreme Court

212 S.W. 861

MEREDITH v. CLAYCOMB.

No. 19897.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

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

Action by Wayland Meredith against Stephen Claycomb. Judgment for plaintiff, and defendant appeals. Case transferred to Springfield Court of Appeals.

This suit was instituted in the Jasper circuit court December 18, 1915, for damages resulting to plaintiff from serious injuries received in a collision in a street of Joplin in said comity between an automobile driven by defendant, a resident of the city and a motorcycle upon which the plaintiff was riding at the time. The plaintiff, upon his motorcycle, was going east along the south or right side of the street toward an alley which entered it from the south, while the plaintiff was approaching from the east along the north side of the same street and turned toward the south to enter the alley, colliding with the motorcycle as it was passing the entrance to the alley.

The petition pleaded: (1) An ordinance of the city requiring that every person operating any motor vehicle on the public streets in the city shall drive upon the same in a careful and prudent manner, and prescribing maximum rates of speed; (2) an ordinance providing that every person driving in a vehicle in any street of the city shall operate, drive, or ride such vehicle to the right of the center of the street; and (3) that it was the duty of defendant, while driving west upon Fifth street, "to exercise the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury to persons traveling on said street, but plaintiff states that this the defendant carelessly and negligently failed to do, and that as he approached the alleyway between Connor and Jackson avenue he ran and operated said automobile at a careless and reckless rate of speed; that at said time the plaintiff was riding east upon Fifth street, and it was the duty of said defendant, under and by virtue of the ordinance of the city of Joplin under the laws of the state of Missouri, to pass plaintiff upon the right, but plaintiff states that this the defendant carelessly and negligently failed to do, and, as he approached said alley without warning or signal of any kind, he suddenly turned and drove said machine to the left, and drove the same upon and against the plaintiff, who was attempting in compliance with the law to pass to right of defendant; that it was the duty of defendant to use the highest degree of care to avoid injuring plaintiff, but the said defendant carelessly and negligently failed to do so," and ran upon the plaintiff. It is needless to specify the numerous particulars in which the petition specified the negligence of plaintiff.

The defendant answered by general denial, and afterward, by amended answer, further pleaded "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." At the close of plaintiff's evidence upon the trial the defendant asked a peremptory instruction for a verdict in his behalf, which was refused, and defendant excepted. The defendant introduced his evidence, upon the close of which he renewed his request, which was refused, to which he excepted. The plaintiff thereupon asked three instructions as follows:

"(1) If you find and believe from the greater weight of the evidence that the defendant, on the 9th day of September, 1915, was driving west in an automobile on Fifth street, and that said street, between Jackson and Connor avenues, is a much-traveled public street, then it was his duty, under the law of the state of Missouri, in operating his said automobile upon said street, to exercise the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury to persons traveling upon said street; and if you further find that at said time plaintiff was riding a motorcycle on said street and was approaching said alley from the west, and that defendant saw plaintiff approaching, or could have seen him by the exercise of ordinary care, and that as plaintiff approached defendant he drove his said motorcycle to the right and attempted to pass defendant on the right, and that at the same time the defendant carelessly and negligently turned to the left, and that before turning he carelessly and negligently failed to give any warning of his intention to turn toward the left, and carelessly and negligently ran his automobile upon and against plaintiff; and if you find that defendant at said time failed and neglected to operate said machine in a careful and prudent manner, and failed to exercise the highest degree of care that a very careful person would use under the same or similar circumstances, and as the result of such want of care, if any, on defendant's part, plaintiff received the injuries complained of; and if you further find at said time plaintiff was operating his said motorcycle with the highest degree of care that a very careful person would under the same or similar circumstances and was without fault or negligence on his part which contributed to or caused his said injury—then your verdict should be for the plaintiff.

"(2) The court instructs the jury that even though you find and believe from the evidence that at the time of the collision between defendant's machine and plaintiff's motorcycle plaintiff did not have a light upon his said motorcycle, and that it was then after sunset, yet, if you further find that there was sufficient light for the defendant, by the exercise of ordinary care on his part, to have seen plaintiff's motorcycle, even though the same was without lights, approaching said alley, and that the defendant did see him approaching, or could have seen him by the exercise of due care on his part as defined in these instructions in time so that by the exercise of such care he could have avoided running into and injuring plaintiff, if you find that he did run into and injure him, and if you further find that the fact that plaintiff's motorcycle was...