Sapp v. Hunter
| Decision Date | 11 January 1909 |
| Citation | 115 S.W. 463,134 Mo.App. 685 |
| Parties | LELIA SAPP, by next friend, Respondent, v. W. C. HUNTER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. George W. Wanamaker, Judge.
AFFIRMED.
Judgment affirmed.
O. G Bain & Son and A. G. Knight, for appellant, filed argument.
E. M Harber and Hubbell Bros. for respondent.
(1) The defendant negligently failed to keep a vigilant watch for plaintiff's mother and this team. (2) The defendant negligently ran this automobile at an excessive rate of speed. Acts 1903, sec. 2, pp. 162, 163. (3) The defendant negligently failed to stop this automobile soon enough to prevent frightening these horses. (4) The defendant negligently permitted this automobile to continue making an unnecessary and horse frightening noise. Hall v Compton, 108 S.W. 1124. (5) Among other authorities supporting the plaintiff's fourth, fifth and sixth instructions are the following: Springs Co. v. Brown, 1 L.R.A. (N. S.) 241; Springs Co. v. Brown, 74 N.E. 615; Shinkle v. McCullough, 77 S.W. 197; Shinkle v. McCullough, 105 Am. St. Rep. 249; Christy v. Elliott, 216 Ill. 31; Christy v. Elliott, 74 N.E. 1035; Christy v. Elliott, 1 L.R.A. (N. S.) 215; McFern v. Gardner, 121 Mo.App. 1; Sess. Acts, 1903, p. 162; Murphy v. Wait, 92 N.Y.S. 254; Knight v. Lanier, 74 N.Y.S. 999; The Westhall, 153 F. 1014.
Lelia Sapp, an infant six years old and the only child of Minnie Sapp, deceased, brought this suit in October, 1906, to recover damages on the ground that the death of her mother (who was an unmarried woman) was caused by the negligence of defendant in operating an automobile on a public street in Trenton. Trial in the circuit court resulted in a judgment for plaintiff for two thousand dollars and the cause is here on the appeal of defendant.
Early in the afternoon of a day in August, 1906, Peter Sapp, a farmer, accompanied by his daughter, Minnie (the mother of plaintiff), drove to Trenton in an ordinary farm wagon, drawn by a team of horses. He drove west on College avenue, a public street, and stopped to sell a sack of corn at Cook's mill, which stands on the southwest corner of College avenue and Washington street. The streets in this part of the city do not run with the cardinal points of the compass, but for convenience, we shall speak of College avenue as though its course were east and west and of Washington street as running north and south. St. Louis street is the next east and west thoroughfare south of College avenue, and the intervening block is two hundred feet long. The north wall of the mill is three feet from the south property line of College avenue, and the west wall, for a distance of forty feet from the corner is eight feet from the east line of Washington street. A platform four feet, five inches high and five feet, nine inches wide is in this space next to the building. Forty feet from the corner of the building the west wall, which extends back of that point thirty-nine feet, is built five feet closer to the property line. Sixty-six feet south of the street corner are the mill wagon scales which extend into the street nine feet. A telephone pole stands six and one-half feet west and five feet nine inches north of the northwest corner of the mill. The team and wagon stopped and stood on the south side of College avenue close to the mill, and were headed west. There is a sharp conflict between the witnesses over where the horses stood with reference to the telephone pole. Some, introduced by plaintiff, say the heads of the horses were four or five feet west of the pole while witnesses for defendant say their heads barely extended to the pole. If the witnesses for plaintiff are right, it is apparent from all the testimony as well as from the plats and photographs in evidence that the horses and occupant of the seat in the wagon were plainly visible to defendant from the time he turned his automobile from St. Louis street into Washington street and proceeded north along the traveled roadway of the latter thoroughfare. But, if defendant's witnesses correctly describe the position of the team, it was not visible from St. Louis street because of the obstruction to vision offered by the mill platform, nor could the occupant of the wagon be seen since that position would place her behind the mill building. When he stopped, Mr. Sapp alighted from the wagon and carried the sack of corn into the mill. His daughter remained in the wagon and held the lines. The mill was running and was making a noise and there is evidence to the effect that the team showed some signs of uneasiness, but plaintiff's evidence strongly tends to show that the horses were gentle and that the young woman was in the habit of driving them. Defendant, driving a two-seated gasoline motor car, came west on St. Louis street, turned into Washington street and drove north towards the team. The horses became frightened at the machine, backed behind the mill until they turned the wagon and then dashed eastward on College avenue. The unfortunate woman entirely lost control of the animals and was thrown from the wagon, sustaining injuries from which she died next morning.
Defendant testified that on account of an up-grade at the crossing at St. Louis and Washington streets, he changed his machine to the low gear at the ascent and ran on that gear down Washington street which, from the crossing, is on a slightly descending grade. He was keeping a vigilant lookout and could not see the team until after he left the crossing. As he proceeded, he saw the heads and necks of the horses between the telephone pole and the corner of the building. At first, they gave no indication of fright, and he came on traveling at the rate of four or five miles per hour until he reached a point opposite the mill scales. Suddenly and without previous warning, the horses became frightened and backed out of sight behind the building. At the first appearance of fright, defendant began to stop his vehicle and succeeded in bringing it to a full stop in three or four feet. He also stopped the motor and held the car stationary and silent opposite the scales a minute or two. Thinking the danger over, he alighted, "cranked up" the machine, re-entered the car and drove on. He turned west on College avenue and at the corner looked eastward. The team had disappeared but many people were in the street. He did not stop to ascertain what had become of the team and occupant of the wagon and did not learn of the injury to the mother of plaintiff until late that evening. Defendant is contradicted in vital particulars by the witnesses of plaintiff and by some of his own witnesses. Peter Sapp testified that the car did not stop at all, but ran on to College avenue without abatement of speed, but the testimony of all the other eye-witnesses is against him on this point and we think the admitted physical facts demonstrate that he must be mistaken.
For the purposes of our discussion, we shall assume that the car was stopped at the scales some sixty-five feet from where the horses had been standing. Without lengthening the opinion with quotations from the testimony of the witnesses, we find the evidence most favorable to plaintiff strongly tends to establish the existence of the following facts: First, the horses were standing where defendant might have seen them and the occupant of the wagon when first he turned into Washington street. Second, he ran down the street at the rate of fifteen miles per hour with his machine headed towards the horses and without giving warning. Third, he did not begin to reduce speed at the first appearance of excitement in the horses and did not attempt to stop his machine until panic seized them. Fourth, he did not stop his engine and it continued to make loud noises while the car was standing at the scales. All these things are pleaded in the petition as the negligence on which plaintiff predicates her right to recover.
The answer contains a general denial and a plea of contributory negligence on the part of Minnie Sapp. At the close of the evidence, the court refused to give the peremptory instruction asked by defendant and, at the request of plaintiff, instructed the jury in part as follows:
IV. "The court instructs the jury that while the defendant and the automobile had an equal right to the street and road with the deceased, Minnie Sapp, and the horses and wagon, the law required that in the use and operation of the automobile, the defendant exercise reasonable care corresponding to the risk of injury to Minnie Sapp, and others on the public highway, and, it was the further legal duty of the defendant to keep vigilant watch for vehicles, carriages or wagons drawn by animals and especially vehicles, carriages or wagons driven by women and children, and, if necessary to prevent injury or death by the frightening of such animal or animals, to bring said automobile to a stop in order to give such driver or person an opportunity to alight from such vehicle, or an opportunity to take such other reasonable action as might be necessary for safety.
To continue reading
Request your trial
-
Oehler v. Phoenix Insurance Company, of Hartford, Connecticut
...The court erred in giving instruction numbered one asked by plaintiff because: (a) It was vague, misleading and confusing. Sapp v. Hunter, 134 Mo.App. 685; Harrison v. Franklin, 126 Mo.App. 366; etc., v. Hoffman, 95 Mo.App. 488. (b) It singled out one defense, to-wit, the failure to keep pr......