Raybourn v. Phillips

• Decision Date: 07 November 1911
• Citation: 140 S.W. 977,160 Mo. App. 534
• Parties: RAYBOURN v. PHILLIPS.
• Court: Missouri Court of Appeals

140 S.W. 977

160 Mo. A. 534

RAYBOURN v. PHILLIPS.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

Rehearing Denied November 25, 1911.

1. TRIAL (§ 253)—INSTRUCTIONS.

Submission of the case in an action for collision of an automobile with a team on a highway, without instructions on contributory negligence, or qualification of plaintiff's right to recover, if on the evidence it be found he was guity of contributory negligence, which was pleaded as a defense, and of which there was evidence, is error.

2. TRIAL (§ 251) — INSTRUCTIONS — APPLICATION TO CASE.

The only negligence pleaded, in an action for collision of an automobile with a team on a highway being an unlawful rate of speed of the machine, submission of the questions of a vigilant watch being kept by defendant, and of failure to keep one having been the cause of the accident, was error.

3. NEGLIGENCE (§ 139)—INSTRUCTIONS.

Instructions to find for plaintiff if the jury found from the evidence that the accident "was caused by the negligent acts of defendant," without specifying what those negligent acts were, are erroneous, in leaving it to the jury to rove through the evidence or even outside of it and determining what was actionable negligence.

4. TRIAL (§ 219)—INSTRUCTIONS—DEFINITION.

Submitting to the jury the question of negligence or whether an act was done negligently, without the term "negligence" being defined in some instruction, is error.

5. TRIAL (§ 251) — INSTRUCTIONS — APPLICATION TO CASE.

Instructing the jury to find for plaintiff if they found defendant failed to provide his automobile with suitable brakes, signal devices and lights, and that by such failure he collided with plaintiff's team, when no such issue was made by the pleadings or by any evidence rightfully in the case, was error.

6. HIGHWAYS (§ 184)—COLLISION—INSTRUCTIONS.

An instruction in an action for collision of an automobile with a team, that the jury may find for plaintiff if they find "that the speed * * * at the time of the accident was greater than that prescribed by law, under the circumstances, said speed being greater than is reasonable having a regard for the traffic and the highway, and that same rate of speed exceeded 15 miles an hour," not only does not follow Rev. St. 1909, § 8519, providing that no such machine shall be run "at a greater rate of speed than is reasonable, having regard to the traffic and use of the highway, or so as to endanger the life and limb of any person, or the safety of any property, and shall not in any event, while on any public highway, run at a greater rate of speed than 15 miles an hour," but is so confusing as to amount to misdirection.

7. HIGHWAYS (§ 184) — COLLISION — SPEED— EVIDENCE.

The testimony of a witness that defendant's automobile, which while going up a hill, and when nearly at the top of it, collided with plaintiff's team, was going about 20 miles an hour when it came to the hill, is no evidence that at the time of the collision it was going more than 15 miles an hour, the limit of speed prescribed by Rev. St. 1909, § 8519, for an automobile, in any event, while on any public highway; he also testifying that at the time of the collision it was going about 10 miles an hour.

8. HIGHWAYS (§ 184) — COLLISION — SPEED— QUESTION FOR JURY.

Whether the speed of 10 miles an hour of defendant's automobile when, while going up a hill, and nearly at the top of it, it collided with plaintiff's team, was a greater rate of speed than was reasonable, having regard to the surrounding circumstances, within Rev. St. 1909, § 8519, providing that no such machine shall be run at a greater rate of speed than is reasonable, having regard to the traffic and the use of the highway, or so as to endanger the life and limb of any person, or the safety of any property, and shall not in any event while on any public highway, run at a greater rate of speed than 15 miles an hour, is a question for the jury under proper instruction.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by George Raybourn against J. W. Phillips. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Ely, Kelso & Miller, for appellant. Orren Wilson, for respondent.

REYNOLDS, P. J.

This action was commenced in the circuit court of Cape Girardeau county by plaintiff against defendant, to recover damages from injury to a mule. From a judgment for $145, in favor of plaintiff, defendant appealed to this court, from which the cause was transferred to the Springfield Court of Appeals under the provisions of the act of the General Assembly of the state (Laws 1909, p. 396, now section 3939, R. S. 1909), but before submission to that court was transferred back to this court in consequence of a decision of the Supreme Court in State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon et al., 232 Mo. 496, 134 S. W. 538, and was argued and submitted to us by counsel for the respective parties.

Along with his brief on the merits, counsel for respondent files a motion to dismiss the appeal, claiming that it does not appear by the abstract of the record, either that motions for new trial and in arrest had been filed or when they were filed in the circuit court. That motion is disposed of by saying that the printed abstract of the record before us shows these facts with sufficient accuracy to render the point untenable.

Turning to the case itself, the petition upon which it was tried, after stating with great prolixity the fact that defendant was a common carrier of passengers and was running an automobile owned by him along a public road, at the time going from Jackson to Cape Girardeau, and that plaintiff was driving his wagon and team of mules along the same road from Cape Girardeau to Jackson, avers that when about half way between the two cities the automobile and the team met and in passing the automobile ran against one of the mules plaintiff was driving and broke its leg. We will give plaintiff the benefit of his petition, so far as it contains the averment of negligence, word for word and exactly as printed in the abstract. It is as follows: That "the defendant, his agents, servants, and the owner of said Automobile, and in charge of same, Automobile Car driven by motor power, so carelessly, negligently, maliciously, wantonly, and refused to use ordinary, care and diligence, prudence, in the premises, and with impunity, conducted themselves, and the speed, and movements of said Engine, propelling, said Motor Car, and the movements, and speed of said Automobile car, in the operation of said car, then and there in charge of the defendant, his agents, servants employee, and owner.

"And that by the reason wanton, negligent, unskillfulness and want of ordinary care, prudence, and diligence, did with great force, violence, while the defendant was operating his system of...