Murphy v. Mack

• Decision Date: 11 March 1922
• Docket Number: No. 2950.,2950.
• Parties: MURPHY v. MACK
• Court: Missouri Court of Appeals

239 S.W. 595

MURPHY v. MACK

No. 2950.

Springfield Court of Appeals. Missouri.

March 11, 1922.

Rehearing Denied April 12, 1922.

Appeal from Circuit Court, Greene County; Orin Patterson, Judge.

Action by E. D. Murphy against R. E. M. Mack. Judgment for plaintiff, and defendant appeals. Affirmed.

Hamlin & Hamlin, of Springfield, for appellant.

John H. Fairman and Otis Patterson, both of Springfield, for respondent.

COX, P. J.

Action for damages for personal injuries. Verdict for plaintiff for $2,000, and defendant has appealed.

The material facts are as follows: On the day of the injury, plaintiff had ridden with a relative in a spring wagon to the store of Mr. Whitaker on the south side of High street in the city of Springfield. High street runs east and west, and the Bolivar Road goes into it from the north a little to the west of the store. The spring wagon had been stopped in front of the platform in front of the store with the rear end standing to some extent out in the street. Plaintiff says the rear end was out two or three feet. Defendant's witnesses say it stood out at an angle of about 45 degrees. The horse and wagon were headed to the east. Plaintiff remained seated in the spring wagon while his companion went into the store. Defendant, with his daughter driving an automobile, approached High street from the north over the Bolivar Road. As he neared High street an oil truck passed along in High street going east, and defendant, in turning into High street, passed so close behind the oil truck that this view of the spring wagon in which plaintiff was sitting was obstructed, and in making the turn into High street defendant was required to pass south around the line of the truck as it traveled east. When he passed around the line of the truck, he then, for the first time, saw the spring wagon, and, according to his testimony, was then so close to it that his daughter, who was driving the car, could not stop. Defendant granted the wheel and made an effort to turn the car so as to avoid striking the spring wagon, but was unable to do so, and the right fender of the car struck the right rear wheel of the wagon and overturned it and threw plaintiff out and injured him.

The petition in charging negligence used the following language:

"That the defendant, by the agency of his said daughter and with defendant present in the said automobile or motor car, was driving the said automobile or motor car at a dangerous rate of speed as the said automobile or motor car was driving around the corner out of the Bolivar Road into High street at said intersection, and without any warning or signal to plaintiff, the said defendant in the manner aforesaid negligently, with great force and violence,, ran the said automobile or motor car against the wagon on which plaintiff was lawfully seated, and that by reason thereof plaintiff was violently thrown from his seat in the wagon to the ground."

The answer was a general denial and a plea of contributory negligence by leaving the wagon on which plaintiff was sitting standing out at an angle of 45 degrees in the street, and alleged that, if it had been properly placed along the platform, defendant would not have struck it; also, that his view of plaintiff was so obstructed that he could not see him until so close that the collision could not be avoided.

On the question of the position of the wagon in the street, it is shown that the horse and wagon was headed toward the east and that the right fender of the automobile caught the right rear wheel of the wagon, which was the wheel nearest the porch, and there is no evidence that the automobile could have passed the wagon without striking it if it had...