Priebe v. Crandall

• Decision Date: 05 July 1916
• Docket Number: No. 14,251.,14,251.
• Citation: 187 S.W. 605
• Parties: PRIEBE v. CRANDALL.
• Court: Missouri Court of Appeals

187 S.W. 605

PRIEBE v. CRANDALL.

No. 14,251.

St. Louis Court of Appeals. Missouri.

July 5, 1916.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

Action by Laura O. Priebe, a minor, by her next friend, Samuel W. Priebe, against Edgar A. Crandall. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

T. L. Montgomery, of Kahoka, and James P. Gilmore, of Tulsa, Okl., for appellant. W. L. Berkheimer and J. A. Whiteside, both of Kahoka, for respondent.

ALLEN, J.

Plaintiff, a minor, sues by next friend to recover for personal injuries alleged to have been inflicted upon her by and through the negligent operation of defendant's automobile on a public highway in Clark county, Mo. The trial below resulted in a verdict in plaintiff's favor, returned by nine jurors, for $1,000, and from a judgment entered accordingly defendant prosecutes this appeal.

The petition charges that on May 16, 1913, while plaintiff was returning to her home from school, riding upon a pony along one of the frequently traveled public roads of the county mentioned, defendant, while operating his automobile along such road at a rate of speed in excess of 25 miles per hour for a distance of more than half a mile, negligently struck said pony therewith, throwing plaintiff and the pony to the ground in such manner that plaintiff fell in front of one of the front wheels of defendant's automobile, which passed over her leg, by reason whereof she was severely injured. It is charged that, though the road along which defendant's automobile passed in approaching plaintiff was, for a long distance, straight, and the view unobstructed, defendant negligently failed to slacken the speed of his automobile, or to give any signal or warning, but negligently and recklessly drove the vehicle, at the aforesaid rate of speed, upon plaintiff, wounding and injuring her. The answer is a general denial, coupled with a plea of contributory negligence.

Plaintiff was a girl 12 years of age at the time of her injury. She was returning from school, riding a pony, upon which were seated, also, her younger sister and another little girl; plaintiff being seated behind the other girls. These girls were accompanied by their teacher, Miss Lehew, who was riding a horse. The automobile, owned by defendant, was driven by one Morgan, and in it were the defendant, his daughter, and Morgan's daughter. It approached plaintiff and her companions from the rear, overtaking them.

The evidence is that Miss Lehew observed the automobile when it was about 600 feet distant, and warned the girls of its approach, and that she thereupon turned her horse to the right of the traveled portion of the roadway, while the girls turned the pony to the left thereof. The driver of defendant's automobile was proceeding to pass between the pony and Miss Lehew's horse, when the pony in some way fell in front of the automobile. The evidence is conflicting as to how this occurred. Plaintiff testified that the automobile struck the pony and threw it to the ground, throwing her in front of one of the wheels of the vehicle, which ran over her leg, breaking it. Such is likewise the testimony of plaintiff's little sister, 9 years of age. But this appears to be the only testimony of any eyewitness to the casualty to the effect that the automobile ran over plaintiff. Miss Lehew testified that the automobile struck the pony, and that plaintiff was thrown in front of one of the wheels thereof; but she did not say that the automobile ran over plaintiff's leg, causing the injury for which plaintiff sues.

On the other hand, the testimony of all of the occupants of defendant's automobile is that the machine did not strike the pony and cause it to fall, and did not run over plaintiff's leg; that as the automobile approached the place where the injury occurred the pony was entirely out of the traveled portion of the road, to the left thereof; that the speed of the automobile was slacked, and it was proceeding very slowly, when the pony began to back into the road in front of the machine; that upon observing this the driver of the automobile at once brought it to a stop; that the pony continued to back, and fell upon its haunches immediately in front of the automobile, which was then stationary; that the pony, struggling to rise, struck the front part of the automobile and fell over; and that in falling with the pony plaintiff suffered the injury for which she sues. All of these witnesses, excepting Miss Morgan, testified that they saw plaintiff reach forward and grasp the bridle rein, whereupon the pony backed into the roadway, reared, and began to fall. Miss Morgan testified that she saw plaintiff reach around the two girls in front of her on the pony, but could not say whether or not she grasped the bridle rein. In addition to this, a witness for plaintiff, who was looking from the window of a nearby house, testified that, as the automobile approached plaintiff and her companions, the pony was entirely out of the traveled portion of the roadway, and that the witness then saw it back into the road in front of the automobile; also there is testimony of witnesses to the effect that plaintiff stated to others that she was injured by reason of the pony falling upon her, and that the machine did not run over her leg, though plaintiff, on the witness stand, denied that she made such statements.

There is no evidence whatsoever that defendant's machine was being driven at a speed in excess of 25 miles per hour (see Laws Mo. 1911, p. 327, § 9), and the court withdrew this assignment of negligence from the jury. There is testimony of some witnesses, admitted over defendant's objections, to the effect that the automobile was going "fast," "pretty fast," "awful fast," etc. It was not shown that these...