Shaw v. Wilcox

Decision Date10 August 1920
Docket NumberNo. 2586.,2586.
Citation224 S.W. 58
PartiesSHAW v. WILCOX.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Suit by C. H. Shaw against Gus Wilcox for damages from an automobile collision. Verdict for defendant as to plaintiff's claim, and for plaintiff as to defendant's counterclaim, and plaintiff was granted a new trial, from which order the defendant appeals. Order affirmed.

Frank Sea, of Bolivar, and Delaney & Delaney, of Springfield, for appellant.

Allen & Allen, of Springfield, for respondent.

STURGIS, P.J.

The plaintiff sued and defendant counterclaimed in his answer, each for damages against the other resulting to their respective cars from an automobile collision on a much used public street of the city of Springfield. Each claimed to be free from negligence, and charged the other with negligence causing the collision. The negligence which each charged against the other is practically the same, viz. excessive speed and driving on the wrong side of the street. The plaintiff by reply charges defendant with contributory negligence in the respects stated and also in being intoxicated. The defendant does not by any pleading charge plaintiff with any contributory negligence as such, but does charge him with negligence as an affirmative ground of relief.

On these issues the case was tried, resulting in a verdict for defendant as to plaintiff's claim, and for plaintiff as to defendant's claim. As the jury could hardly have found that neither party was negligent, this result must have been reached by finding that both were negligent, and therefore neither could recover—a result which might well be reached under the evidence. The court, however, granted plaintiff a hew trial on the ground, as stated in the order, of error in giving instructions for defendant. From that order the defendant has appealed. [I] As the evidence of each party exonerated him from negligence, and established the negligence of the other as causing the collision and injury, these questions were for the jury under proper instructions, and if defendant's instructions were wrong the court was justified in granting a new trial. When they collided, the plaintiff's car was going west, and the defendant's car was going east, on St. Louis street. Under the rules of the road the plaintiff was properly on the north side of the paved street, and defendant should have been on the south side, but had passed to the north side in order, as he says, to stop in front of his sister's house. Concluding that no one was home, defendant did not stop there, and so the two cars were about to meet on the north side of the street. Plaintiff's driver says that as he approached defendant's car, being on his proper side, he kept straight ahead till so close to defendant's car that it became apparent that he (plaintiff) must turn to the south side of the street to avoid a collision; that he did so, turning his car southwest; and that defendant then suddenly turned his car toward the same side, going southeast, and ran same into plaintiff's car, striking it broadside. On the other hand, defendant says that he properly and timely turned his car to return to his proper side of the street, so as to avoid plaintiff's car, and that plaintiff then turned to the same side, instead of going straight on, and thereby struck defendant's car near the south curb. The damages sued for are for the injuries to the respective cars, and not to the occupants.

Although the defendant was not per se guilty of negligence for being on the north and left side of the street in driving east, yet he was where vehicles going in the opposite direction had a right to be, and would likely be. It was not only his duty generally, in meeting other vehicles, to turn to the right in passing, but it was his duty to return as soon as practicable to the part of this much-used street properly used by vehicles going east. Plaintiff was on the proper side of the street, and, while he could not blindly and heedlessly drive into a car, even if improperly using that side of the street, yet he had a right to expect, and to act on the theory,...

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28 cases
  • O'Malley v. Eagan
    • United States
    • Wyoming Supreme Court
    • September 21, 1931
    ...Auto Law 416; Elgin Dairy Co. v. Shepherd, (Ind.) 108 N.E. 234; Goble v. Vaught, (Ore.) 269 P. 493, 42 C. J. 901, Sec. 607; Shaw v. Wilcox, (Mo.) 224 S.W. 58; Simonsen Christopher, (Calif.) 200 P. 615; Padgett v. Brangan, (Ky.) 15 S.W.2d 279; John v. Pierce, (Wis.) 178 N.W. 297; Cook v. Sta......
  • Chenoweth v. McBurney
    • United States
    • Missouri Supreme Court
    • November 14, 1949
    ... ... S.W. 482, 302 Mo. 254; Columbia Taxicab Co. v ... Roemmick, 208 S.W. 859; Albright v. Joplin Oil ... Co., 229 S.W. 829, 206 Mo.App. 412; Shaw v ... Wilcox, 224 S.W. 58; Clark v. Atchison, T. & S.F ... Ry. Co., 6 S.W.2d 954, 319 Mo. 865; Stanton v ... Jones, 59 S.W.2d 648, 332 Mo. 631; ... ...
  • Hall Motor Freight v. Montgomery
    • United States
    • Missouri Supreme Court
    • June 14, 1948
    ... ... Bryan, 270 S.W. 658, 307 Mo. 234; Columbia Taxicab ... Co. v. Roemmich, 208 S.W. 859; Linstroth v ... Peper, 188 S.W. 1125; Shaw v. Wilcox, 224 S.W ... 58; White v. Missouri Motors Distributing Co., 47 ... S.W.2d 245, 226 Mo.App. 453; Davis v. F.N. Stamper ... Co., 148 ... ...
  • Gimmarro v. Kansas City
    • United States
    • Missouri Supreme Court
    • May 3, 1938
    ... ... Travelers, 52 S.W.2d 29; Continental Cas. Co. v ... Monarch Transfer & Storage Co., 23 S.W.2d 209; ... Wilcox v. Erwin, 49 S.W.2d 677; Farmers' ... State Bank v. Miller, 26 S.W.2d 863; Prewitt v ... Witte, 26 S.W.2d 1020. (b) The defendant did not ... Marceline Coal Co., 221 S.W. 74; Edelman v ... Wells, 242 S.W. 991; Thimmig v. General, etc., ... Co., 85 S.W.2d 213; Shaw v. Wilcox, 224 S.W ... 58; Columbia Cab Co. v. Roemmick, 208 S.W. 861; ... Neal v. Caldwell, 34 S.W.2d 112. Defense of fellow ... servant ... ...
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