Pilkerton v. Miller

• Decision Date: 12 May 1924
• Docket Number: No. 3578.,3578.
• Citation: 278 S.W. 84
• Parties: PILKERTON v. MILLER.
• Court: Missouri Court of Appeals

278 S.W. 84

PILKERTON v. MILLER.

No. 3578.

Springfield Court of Appeals. Missouri.

May 12, 1924.

Appeal from Circuit Court, Newton County; C. L. Henson, Judge.

Action by John Pilkerton against B. D. E. Miller. Verdict for plaintiff, new trial granted defendant, and plaintiff appeals. Affirmed.

D. S. Mayhew, of Monett, and Leo Johnson, of Neosho, for appellant.

James B. Sater, of Monett, for respondent.

COX, P. J.

Action for damages for alleged injuries received by plaintiff in a collision with defendant's automobile. Verdict for plaintiff. Motion for new trial filed by defendant and sustained. Plaintiff appealed.

The order of the court sustaining the motion for new trial stated that it was sustained on account of errors assigned on the fifth ground in the motion. This part of the motion alleged error by the court in giving instructions Nos. 1, 2, 3, 4, 5, and 13 on part of plaintiff. A consideration of the propriety of these instructions will determine the merits of this appeal. To do this we must look to the pleadings to determine the issues and to the testimony tending to sustain those issues. The petition alleged: That plaintiff was riding in a hack going northward and driving slowly on the east side of Fourth street, in the city of Monett. That defendant was driving an automobile going south on the west side of the same street. That defendant "turned his car to the left and negligently and carelessly ran said automobile diagonally across the street and upon and against plaintiff's hack, thereby throwing the Missouri. May plaintiff out and upon the concrete pavement, thereby injuring plaintiff in the following manner: By breaking, fracturing and smashing the plaintiff's left shoulder, tearing and dislocating same and breaking the socket joint of the shoulder where the arm joints into the shoulder, and also dislocating the thumb on plaintiff's right hand, thereby permanently injuring the plaintiff's left shoulder and right hand so that ever since said date he has been unable to perform manual labor; has suffered great bodily pain and will continue to suffer from said injury due to the carelessness and negligence of defendant."

The answer was a general denial and a special plea that plaintiff was not thrown from the buggy by reason of the collision, but by plaintiff holding to the lines after his horse had broken loose from the buggy, thereby permitting the horse to pull him from the buggy. Also a plea of contributory negligence on part of plaintiff both as to the collision and the plaintiff's care of his injuries afterward.

Plaintiff testified that he was driving north as close to the curb as he could get. It was getting dusk. He saw the car of defendant coming when it was about a half block away and its lights were on. When the automobile was 50 or 60 feet away, it swung to the left toward the hack in which he was riding. The car came directly toward him diagonally across the street and struck the hack and threw him out and injured him. He then described his injuries and testified to facts that tended to show that he had suffered much pain and would continue to suffer pain in the future, and that his injuries were permanent; that he was a poor man and made his living by day's work; that he had not been able to use his left hand to do any work at all and could not use his thumb as he did before. The injuries were to the left shoulder and the thumb on the right hand. The evidence for defendant tended to establish the defense pleaded.

That part of instruction No. 1 which it is contended is wrong is as follows:

"* * * That the defendant was then and there driving an automobile going south on said Fourth street, and that when within a short distance of the plaintiff, the defendant turned his car to the left and negligently and carelessly ran said automobile against the plaintiff's hack, and by so doing plaintiff was thrown to the pavement. * * *"

It is contended that this does not describe any negligent act and authorizes the jury to find defendant guilty of negligence on any theory which they might adopt without reference to the charge of the petition or the evidence. To sustain this position we are cited to Allen v. St. Louis Transit Coo., 183 Mo. 411, 81 S. W. 1142, which held an instruction bad which told the jury that if they should find that plaintiff's injuries "were caused by the failure on the part of the said defendant or defendants, their servants, agents or...