Trimble v. Price

• Decision Date: 05 April 1926
• Docket Number: No. 15540.,15540.
• Citation: 282 S.W. 89
• Parties: TRIMBLE v. PRICE.
• Court: Missouri Court of Appeals

282 S.W. 89

TRIMBLE v. PRICE.

No. 15540.

Kansas City Court of Appeals. Missouri.

April 5, 1926.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

"Not to be officially published."

Action by Thomas Trimble against R. B. Price, Jr. Judgment for plaintiff, and defendant appeals. Affirmed.

Harris & Price and McBaine & Clark, all of Columbia, for appellant.

Scott J. Miller, of Chillicothe, Roger S. Miller, of Kansas City, and A. R. Troxell, of Columbia, for respondent.

ARNOLD, J.

This is a suit in damages for personal injury alleged to have resulted from a collision between an automobile driven by defendant and a motorcycle ridden by plaintiff on University avenue in the city of Columbia, Boone county, Mo.

The facts as shown by the record are that the accident occurred on March 17, 1924. University avenue in the city of Columbia extends east and west and is intersected at right angles by Matthews street and also by Hitt street. Defendant's residence is on the north side of University avenue approximately half way between these two intersections; Matthews street being east of defendant's residence. The evidence shows that University avenue, from Matthews street to a point opposite defendant's residence, has a slight decline and from that point west the surface of the pavement is practically level, but somewhat farther west it declines until it reaches the campus of Missouri University.

On the day in question at about 5:30 p. M. plaintiff, riding a motorcycle, was proceeding west on the north side of University avenue about 4 or 5 feet from the north curb thereof, having entered said avenue at Matthews street or a street farther east and parallel thereto. At the same time, defendant, driving a Dodge sedan automobile was going east on the south side of the center of University avenue, having entered the avenue either at Hitt or Ninth street, another street intersecting University avenue, farther west. The residence of defendant is somewhat back from the north line of said avenue and upon a terrace a little above the level of the street and there is a driveway along the east side of the house leading from the street to a garage at the rear. Immediately east of the driveway, at a distance of 10 or 12 feet therefrom, is a similar driveway on the property of a Mr. Priddy.

On reaching a point approximately south of the driveway of his property, defendant turned his car to the north, with the intention of entering his driveway. He reached a position where the front wheels of the automobile had entered the driveway, when plaintiff, in order to avoid a collision, swerved his motorcycle to the left, and, in so doing, his right leg collided with the end of the right rear bumper of defendant's car, throwing plaintiff from his machine; the impact producing a compound fracture of plaintiff's right leg, resulting in a permanent shortening of that member.

The negligence charged in the petition is as follows:

"The defendant negligently and carelessly, while driving his car at a high rate of speed, suddenly changed from the right-hand side and going in his direction, and without any warning whatever, and in the middle of a block, drove his automobile in front of this plaintiff, and made said turn quickly, negligently, and carelessly, and without observing the rules of the road or the established law of the state, without giving to this plaintiff or to any one passing on the street any signal whatever that he was going to make a turn, and did carelessly and negligently drive his said car, without regard to the rights of others, on said street, across said street, to the right-hand side of said street, immediately in front of this plaintiff, suddenly and carelessly, and did so negligently drive said car in front of this plaintiff and with such a sudden turn that this plaintiff's motorcycle collided with the said car of defendant that was so negligently driven in front of this plaintiff's motorcycle while in operation, thereby causing the rear end of defendant's car to strike and collide with the plaintiff's motorcycle, catching plaintiff's right leg in the bumper, rear wheel, and fender of the defendant's high-powered car, mashing plaintiff's right leg from the knee to the ankle, and breaking and crushing plaintiff's leg between the knee and the ankle and mashing and crushing the bone in plaintiff's leg, so that from the effects of the breaking and bruising of plaintiff's leg the bone in plaintiff's leg was so injured that large pieces of bone came from said leg."

Further, the petition states:

"That all of his said injuries were caused by the defendant so negligently and carelessly and without warning and without the observance of the rules of the road or of the law, to drive his car in front of plaintiff's motorcycle at a time and at a place when plaintiff, by the exercise of ordinary care, which at the time he was exercising, could not avoid the collision of the motorcycle and the car, and at the place of the collision, and at the time the defendant's car had crossed the center of the street to plaintiff's side of the street and near the curb of said street."

Damages are asked in the sum of $25,000. The amended answer is a general denial, and, as affirmative defense, it is charged that—

"The injury of plaintiff on the occasion in question was caused by his own negligence directly contributing thereto in this, to wit: That he was operating the motorcycle on which he was riding at an excessive rate of speed and was not exercising the highest degree of care in the operation of said motorcycle, but was operating, running, and driving said motorcycle at a high rate of speed, and at a rate of speed that was not careful and prudent, and, by reason of the high and dangerous rate of speed which said motorcycle was being operated by plaintiff, plaintiff could not slow and slacken the speed of his motorcycle so as to avoid coming in contact with defendant's car as defendant drove his"car into his (defendant's) driveway; * * * that he was negligently operating the motorcycle on which he was riding at an excessive rate of speed and failed to exercise the highest degree of care in driving and operating said motorcycle, and was operating and driving said motorcycle at a rate of speed that was not careful and...