Roy v. North Kansas City Development Co.

• Decision Date: 13 December 1920
• Docket Number: No. 13097.,13097.
• Citation: 226 S.W. 965
• Parties: ROY v. NORTH KANSAS CITY DEVELOPMENT CO.
• Court: Missouri Court of Appeals

226 S.W. 965

ROY v. NORTH KANSAS CITY DEVELOPMENT CO.

No. 13097.

Kansas City Court of Appeals. Missouri.

December 13, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

On rehearing. Affirmed.

For former opinion, see 209 S. W. 990.

Kenneth McC. De Weese, of Kansas City, for appellant.

Chas. A. Miller, of Eagleville, for respondent.

TRIMBLE, J.

Upon a former hearing of this case an opinion was rendered by Ellison, P. J., and, since it correctly states the case and enunciates principles to govern its disposition in which we fully concur, it is here set forth as follows, to wit:

"Plaintiff's action is for damages received to his person in the sum of $450, and to his motorcycle in the sum of $50. The case was begun before a justice of the peace, and on appeal to the circuit court he recovered judgment.

"It appears that defendant's servant was in charge of a team of horses hitched to a wagon, together with two mules tied to the rear of the wagon. He was driving north along a public road with the mules following behind. The road was paved with macadam for a width of 20 feet, with a sharp decline to the side off of the paved portion. Plaintiff was riding his motorcycle south, at comparatively slow speed, on the right of the center of the road; but defendant's servant was driving the wagon on the same side, going in the opposite direction. The result was that plaintiff with his motorcycle was somewhat cramped for space to get by, and as he passed the mules at the rear, the one nearest him kicked out and struck him, knocking him to the ground and somewhat wrecking his machine.

"Under the law (section 10540, R. S. 1909) it was the duty of each of these parties, thus meeting on the highway, to keep to the right of the center of the road, and if defendant's driver had obeyed this law, he and the mules would in all probability have been far enough away from plaintiff to have avoided the mule reaching him, if, indeed, it had kicked at all. Disobedience of such character of statute, while not conclusive evidence of negligence, may be submitted to the jury and a verdict finding liability on ground of negligence will be upheld. Needy v. Littlejohn, 137 Iowa, 704, 115 N. W. 483.

"But defendant insists that plaintiff was guilty of such degree of contributory negligence as to have required the trial court to sustain its demurrer to the evidence. This insistence is principally based on the fact that plaintiff saw the position of the wagon and yet attempted to pass by instead of stopping his motorcycle, as it was shown he could have done. We do not think we should declare as a matter of law that such action on plaintiff's part was conclusive of his negligence. It was a question for the jury, and was properly submitted in plaintiff's instructions."

In addition to the foregoing, it is well to state that we are the more readily led to agree that plaintiff should not be held guilty of contributory negligence as a matter of law because, although plaintiff saw the mule behind the wagon before he reached it, yet the driver thereof made as if to turn out to his right, and plaintiff was thereby led to believe that he would be given his share of the road whereby he could...