Nafziger v. Mahan

• Decision Date: 29 January 1917
• Docket Number: No. 12284.,12284.
• Citation: 191 S.W. 1080
• Parties: NAFZIGER v. MAHAN.
• Court: Missouri Court of Appeals

191 S.W. 1080

NAFZIGER v. MAHAN.

No. 12284.

Kansas City Court of Appeals. Missouri.

January 29, 1917.

Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.

"Not to be officially published."

Action by Nathalie Nafziger against Clem M. Mahan. Judgment for plaintiff, and defendant appeals. Affirmed.

Humphrey, Boxley & Reeves, of Kansas City, for appellant. Wright & Haddoch, of Kansas City, for respondent.

BLAND, J.

Plaintiff sued defendant for damages growing out of an automobile accident. At the trial plaintiff introduced testimony tending to show that on December 21, 1913, in company with her husband, brother, and a friend, she left her residence in the northeastern part of Kansas City, Mo., in an automobile, and had started to the home of relatives, intending to pay them a visit; that while the automobile was headed west on Linwood boulevard, the same being a street running east and west in Kansas City, Mo., and when at a point a few feet west of the intersection of said boulevard with Euclid avenue, said automobile was struck by an automobile being driven by defendant east on said boulevard. The automobile in which plaintiff was seated belonged to her husband and was being driven by her 14 year old brother. Plaintiff's husband was seated in the rear seat with her, and the witness Hinson was seated in the front seat with the driver. The evidence further shows that her brother was not a member of her family; that he lived in another part of the city, and he had come to plaintiff's house the night before for the purpose of spending that night and the day upon which the accident occurred with plaintiff's family as a visitor; that plaintiff's brother was requested to drive the car by plaintiff's husband and not by plaintiff.

Plaintiff introduced testimony tending to show that when the car in which plaintiff was riding reached the west curb of Euclid avenue, and was running within three or four feet south of the north curb of Linwood boulevard, defendant's car was seen 150 feet to the west and on the south side of Linwood boulevard, approaching at a rate of speed from 25 to 30 miles per hour; that the boulevard was oval in shape, the highest point being in the center thereof, and that it was icy; that the boulevard sloped upward toward the west from the intersection of Euclid avenue therewith; that immediately across the street and south of the car in which plaintiff was seated were two cars, headed toward the east, which appeared to be standing; that, when the defendant reached a point on Linwood boulevard 50 or 75 feet west of Euclid avenue, he was still going very fast; that about the time he reached the two cars standing on the south side of Linwood boulevard, in order to avoid striking them, the car was turned suddenly to the left, skidding into the car in which plaintiff was seated, throwing plaintiff therefrom and injuring her. Plaintiff's testimony further tended to show that, from the time the driver of the car in which she was seated first saw defendant's car until the collision, he had proceeded westwardly about 10 or 15 feet.

The witness William Schaefer, on the part of plaintiff, testified that he was the driver of the car in which plaintiff was seated, and from the time he first saw defendant's car until he reached the point of collision he had proceeded westwardly about 10 or 15 feet; and that he had not quite stopped his car at the time of the collision. He further testified that, when defendant's car was 50 to 75 feet away, the center of the car in which plaintiff was seated was directly opposite the west curb of Euclid avenue, and at that point, anticipating that there might be an accident, he applied his foot and emergency brakes, sliding the rear wheels of his car, and that the rear wheels of his said car continued to slide until the collision.

The witness Otto Holcker, on the part of plaintiff, testified that he was driving the more easterly one of the two cars which were said to have been apparently standing on the south of Linwood boulevard; that he had stopped his car about the west side of the intersection of Euclid avenue with Linwood boulevard to permit an electric coming from the east to pass him, and, about the time the electric had so passed, he looked to the east and again saw another car approaching, and, remembering the icy condition of the pavement, he waited until that car passed also; that thereafter he started up his car, and had turned the same toward the north on Euclid avenue when he heard the crash caused by the collision between the car in which plaintiff was seated and defendant's car. The witness further testified that he stopped about a minute to permit the electric and the other car to pass by him. He further stated that he afterwards talked to the defendant, and the defendant told him that he had seen witness' (Holcker's) car when his (the defendant's) car was 300 feet to the rear of Holcker's car.

Defendant introduced testimony tending to show, in explanation of how his car happened to skid across the boulevard, that one of the automobiles in his path suddenly stopped in front of him without giving any warning signal, and when he applied his brakes it caused his car to skid to the north, and that he had been traveling from 12 to 15 miles per hour, and that there were chains on the rear wheels and on one of the front wheels. In stating the facts we have taken the testimony most favorable to plaintiff.

Under this state of the evidence, appellant claims that the defendant's demurrer to the evidence should have been sustained. If it be true, as plaintiff's testimony tends to prove, that defendant was driving his car upon an icy street at a rate of speed from 25 to 30 miles an hour, and that in order to avoid striking the automobiles directly in his path he suddenly swerved to the left, skidding across said boulevard so that his car struck the automobile in which plaintiff was seated and which was on...