Topping v. Bourne
| Decision Date | 29 January 1917 |
| Docket Number | No. 12282.,12282. |
| Citation | 191 S.W. 1032 |
| Parties | TOPPING v. BOURNE. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.
"Not to be officially published."
Action by Henry H. Topping against Richard F. Bourne. Judgment for plaintiff, and defendant appeals. Reversed.
Humphrey, Boxley & Reeves, of Kansas City, for appellant. Langsdale & Howell, of Kansas City, for respondent.
Plaintiff's action was instituted to recover damages resulting from a collision on the streets of Kansas City with defendant's automobile. The case was presented in the trial court on the theory of the humanitarian rule, and on that idea plaintiff recovered judgment.
It appears from evidence in plaintiff's behalf that on the afternoon of the 21st of August, 1915, he was attending a baseball game in Kansas City. He rode his motorcycle to the grounds. While the game was under way, a boy stole one of the balls that had been knocked within his reach and endeavored to make his escape by flight. Plaintiff and others gave chase, plaintiff on his cycle going west on Sixteenth street at the rate of 30 miles per hour, until he approached something short of 100 feet of the intersection with Park avenue, when he threw off his power and began to apply his brake so as to be able to stop at the crossing if necessary. At this time he saw defendant going north on Park avenue approaching the crossing in his automobile at a speed of about 18 miles an hour. He (defendant) was also about 100 feet from the intersection. They saw each other at substantially the same time. As he (plaintiff) got close to the intersection, defendant had gotten so near that he (plaintiff) might run into him, so he turned to the right in order to get into Park avenue and run on north parallel with defendant's machine, but saw he had not room for that movement and turned to the left with a view of passing behind defendant's car. By this time he was about in the center of the intersection and struck the rear part of the rear end of the fender over the rear wheel of defendant's car, thus barely failing in his effort to pass behind the car. He was thrown to the ground and injured. At the time of the collision he was running about 5, 6, or 7 miles per hour.
We fail to find in the record the slightest evidence of negligence on defendant's part, while plaintiff was guilty of gross carelessness. He was in such wild pursuit of a boy on the paved streets of a city that it meant every chance of disaster. It is true he testified that he slowed down for the crossing so as to be able to stop, and he admitted that he "never realized I (he) could not stop until after the accident." It is strange that he should think that defendant, who had the right of way, should have known he could not stop when he did not know it himself. He had every advantage of defendant both in experience and position, for he was astride his cycle and had been a motorcyclist for several years. He testified that:
"I figured that I could slow down, at least my conclusions were about that, and I would...
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Phillips v. Henson
...Mo. 37; Columbia Taxicab Co. v. Mercurio, 236 S.W. 1096. (2) Plaintiff was guilty of contributory negligence as a matter of law. Popping v. Bourne, 191 S.W. 1032. (3) The court properly refused to give Instruction 2 requested by plaintiff, because: (a) The statute requires the driver of an ......
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Phillips v. Henson
...Mo. 37; Columbia Taxicab Co. v. Mercurio, 236 S.W. 1096. (2) Plaintiff was guilty of contributory negligence as a matter of law. Popping v. Bourne, 191 S.W. 1032. (3) The properly refused to give Instruction 2 requested by plaintiff, because: (a) The statute requires the driver of an automo......
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Albright v. Joplin Oil Co.
...and any omission of the driver's not the proximate cause of the injury. Columbia Taxicab Co. v. Roemmich, 208 S.W. 861; Topping v. Bourne, 191 S.W. 1032; v. Railway, 121 N.W. 380; Matteson v. Railway, 92 p. 101; Kenelen v. Railroad, 216 Mo. 164; Moore v. Railway, 176 Mo. 545; Hopkins v. Aut......
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Banks v. Empire Dist. Electric Co.
...occupied relatively the same position as the trainmen in that case. We shall notice the facts in this case later. In Topping v. Bourne (Mo. App.) 191 S. W. 1032, a motorcycle was struck by an automobile at a street crossing. Under the facts in that case it was held that defendant was not ne......