Moore v. Fitzpatrick, 4782.

• Decision Date: 25 September 1930
• Docket Number: No. 4782.,4782.
• Citation: 31 S.W.2d 590
• Parties: MOORE v. FITZPATRICK.
• Court: Missouri Court of Appeals

31 S.W.2d 590

MOORE v. FITZPATRICK.

No. 4782.

Springfield Court of Appeals. Missouri.

September 25, 1930.

Rehearing Denied October 21, 1930.

Appeal from Circuit Court, Greene County; John Schmook, Judge.

"Not to be officially published."

Action by E. F. Moore against E. A. Fitzpatrick. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

J. C. West and Jno. P. McCammon, both of Springfield, for appellant.

F. B. Holland, of Kansas City, and Frank B. Williams and A. P. Stone, Jr., both of Springfield, for respondent.

COX, P. J.

Action for damages to an automobile and personal injury to plaintiff resulting from a collision between the automobile of plaintiff and an automobile of defendant at the intersection of two public highways in Greene county. Plaintiff recovered judgment for $400. Defendant appealed.

The first error assigned is that the court should have sustained a demurrer to plaintiff's testimony. The demurrer is based on the alleged fact that plaintiff's evidence shows that defendant had the right of way at the intersection where the collision occurred and plaintiff failed to yield the right of way to defendant, and for that reason plaintiff was guilty of contributory negligence and cannot recover. The facts as related by plaintiff and defendant are simple, though in very essential parts directly opposite to each other. Both agree that the collision occurred at the intersection of Campbell Street Road, which runs north and south, and the Galloway Road, which runs east and west. That plaintiff was traveling east on the Galloway Road and defendant was traveling north on the Campbell Street Road. That on account of the cuts in the two roads and high weeds at the southwest corner of the intersection, neither of the parties could see the other approach the intersection. These facts may, therefore, be said to be conceded. As to the subsequent facts the parties differ very radically. Plaintiff says that as he approached the intersection, he could not see to the south on the Campbell Street Road, and he gave warning by sounding his horn and slowed down so that as he entered the intersection of the roads he was going about as fast as a man could walk, or about five miles per hour, and could have stopped in two or three feet. He said: "When the front part of my car entered the intersection — crossed the west line of Campbell Street Road, it was barely moving — something like a person would walk. I was going slow to avoid a collision. I was not aware that an automobile was coming up the hill close to me. Just as I pulled out, his car came, just whizzed by — whizzed by and hit me just as I pulled into Campbell Street." Also said his car had gotten into the Campbell Street Road about three feet when the collision occurred. When the cars collided, they went some fifty feet in a northeast direction across the road and stopped on the east side of the road. This testimony and some other on the part of plaintiff would show that defendant was driving on the left side of the Campbell Street Road at the time of the collision. There was evidence that defendant was driving at least twenty-five miles per hour. Defendant and his wife, who was with him in the car, testified that he was driving on the east or right-hand side of the road and gave warning of their approach to the intersection, but plaintiff testified he did not hear their warning. That plaintiff's car ran into defendant's car instead of defendant running into plaintiff's car. On a demurrer to the evidence we must eliminate defendant's testimony and determine the question on plaintiff's evidence alone.

The defendant contends that since he was on plaintiff's right as the two cars approached the intersection and that they both reached the intersection at approximately the same time, it was the duty of plaintiff to yield the right of way to defendant and stop, if necessary, to let defendant pass, and had he observed that requirement of the state traffic law, the collision would have been avoided, and the fact that he did not yield the right of way to defendant made him guilty of contributory negligence as a matter of law and bars his recovery in this case.

On plaintiff's testimony the collision occurred very near the west side of the Campbell Street Road, so near, in fact, that for plaintiff to have avoided the collision would have required him to stop, get out of his car, and look to the south to see if a car were approaching from that direction before attempting to cross the road. This he was not required to do. There are two provisions of the state traffic law that apply to these parties here. One is section 21, par. (b), found on page 93, Act of Extra Session, 1921, which reads as follows:

"All vehicles when in operation shall be kept as close to the right-hand side of the highway as practicable."

That provision required defendant to have driven as near the east side of the Campbell Street Road as was practicable in approaching the intersection where the collision occurred. If plaintiff's testimony be true, he did not do that and was therefore guilty of negligence.

The other provision, and the one sought to be invoked against plaintiff, is paragraph (l) of the same act, found on page 95, and is as follows:

"An operator of a motor vehicle shall have the right of way over an...