Raymen v. Galvin

• Citation: 229 S.W. 747
• Decision Date: 05 March 1921
• Docket Number: No. 21663.,21663.
• Parties: RAYMEN v. GALVIN.
• Court: United States State Supreme Court of Missouri

229 S.W. 747

RAYMEN v. GALVIN.

No. 21663.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Motion for Rehearing Denied April 9, 1921.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Kusiel Raymen against Roy E. Galvin. Verdict for defendant, and from order granting a new trial, defendant appeals. Affirmed.

Culver, Phillip & Voorhees, of St. Joseph, for appellant.

Eugene Silverman and Strop & Mayer, all of St. Joseph, for respondent.

SMALL, C.

I. Suit for personal injuries. Plaintiff, while crossing Ninth street at its intersection with Messanie street, in the city of St. Joseph, on the night of November 11, 1919, was run over by defendant's automobile. Plaintiff was walking east on the south crossing, and defendant was driving his car and coming down Ninth street from the north. Messanie street, at its intersection with Ninth street between the property lines, is 35 feet wide, and Ninth street, 36 feet between the curbs.

Plaintiff testified: That as he left the curb at the crossing on the west side of Ninth street, he looked north and saw defendant's car coining, but it was about a block or a block and a half away. The crossing was well lighted, so that plaintiff could be seen at all times while thereon. That, thinking he had plenty of time to cross over, he did not look again until he was within 10 or 12 feet of the east curb, when he looked up, and defendant's car was so close upon him he could not avoid it, and it ran onto him. He says he did not stop nor hesitate and turn hack west and then turn east or zigzag back and forth to avoid the car, but the car hit him as he pursued his course straight ahead over the crossing.

The defendant testified: That the crossing was "light as day," and that defendant saw plaintiff step from the west curb to pass over the crossing, at which time his car was about 100 feet north of Messanie street, coasting down the center of Ninth street at about 15 to 20 miles an hour. That he saw plaintiff from the time he left the curb until the car struck him. That plaintiff did not look back towards the car after leaving the west curb, but proceeded directly east on the crossing until he reached the middle of the street. That defendant's auto was then within 15 feet of plaintiff, and defendant intended to pass him on the west, when plaintiff suddenly looked up, stopped, and jumped back towards the west. Defendant then turned his car toward the east, whereupon plaintiff suddenly stopped and started east again, when the right fender of the car struck plaintiff, dragging him and running over him and seriously injuring him. Defendant made no attempt to stop his car or slow down, but tried to avoid plaintiff by turning his car, and did not apply the brake until practically upon the plaintiff. When he hit plaintiff, his car was on the east side of Ninth street. He had plenty of time to slow down, but did not try to, because he thought he could pass west of plaintiff. "We zigzagged. He didn't know where to go, and I didn't either. I made the best of it I could. If plaintiff had stood still or continued walking ahead, the car would not have struck him." Defendant testified that he did not know whether he sounded his horn or not, but a witness, who was riding with defendant, said defendant sounded the horn, when he first saw plaintiff leaving the curb 100 feet north of Messanie street. The accident happened at 1:30 at night.

Plaintiff said the street was clear of all other vehicles, and he heard the car coming, but no horn nor signal was given, and he never saw the car after looking and seeing it a block and a half away, when he started over the crossing, until he was within two or three steps of the east curb. He had walked over the crossing at the ordinary speed.

The petition, among other things, charged that defendant negligently ran his car at a high and dangerous rate of speed, and as he approached plaintiff negligently failed to have said car under control, or slow down, and negligently failed to give an audible or any signal with his horn, and that defendant saw, or by the exercise of care on his part could have seen, plaintiff on said crossing in a place of danger in time to have stopped said car or lessened the speed or changed the course thereof and avoided striking the plaintiff, but he negligently failed to do any of these things, whereby plaintiff was run upon by said car and injured. The answer was a general denial and plea of contributory negligence.

Among other instructions, the court gave the following for the defendant, to which plaintiff excepted:

"(2) The court instructs the jury that it is the duty of a person traveling upon a street to exercise ordinary care in looking out for his own safety, and for that purpose to use his sense of sight and hearing as an ordinarily prudent person would under the same circumstances to prevent coming in contact with vehicles and being injured thereby. And if you believe from the evidence that the plaintiff started to cross Ninth street at its intersection with Messanie street, and that as he was about to do so he looked north and saw or heard an automobile approaching from that direction, and that he continued to walk across Ninth street towards the east without looking out for or paying further attention to said approaching automobile, and that the defendant approached the plaintiff, intending to pass between plaintiff and the west curb of Ninth street, and the defendant had ample room to do so, and the plaintiff would have been in no danger of being struck by said automobile if the plaintiff had continued to walk towards the east side of Ninth street, and that the plaintiff, when he reached a point about the middle of Ninth street, looked up and saw said automobile approaching him, and without any warning to the defendant, Galvin, suddenly turned and started back towards the west curb of Ninth street, and that when the plaintiff started back west the defendant Galvin did not have time to stop his car or to prevent it from striking the plaintiff, and that in order to prevent said car from striking the plaintiff, it was necessary for the defendant to, and he did, turn his car towards the southeast to pass between the plaintiff and the east curb of Ninth street, and that as the defendant, Galvin, did so plaintiff suddenly stopped or suddenly started towards the east curb, and that in consequence thereof the defendant's automobile collided with the plaintiff and ran over and injured him, and that such collision was unavoidable on the part of the defendant, then your verdict will be for the defendant.

"(3) The court instructs the jury that the burden is upon the plaintiff to prove his case by the preponderance or greater weight of the evidence, and if you believe that the weight of the evidence is in favor of the defendant, or even if you believe that the evidence is equally balanced between the plaintiff and the defendant, then the plaintiff has failed to make out his case, and your verdict must be in favor of defendant."

"(6) The court instructs the jury that if you believe from the evidence that just as the plaintiff started to cross Ninth street he looked north and saw the automobile mentioned in evidence coming south on Ninth street, and knew that the driver of said automobile intended to drive said car on south past the intersection of Messanie street, then it is immaterial in this case whether the...