Tucker v. Carter
| Citation | 211 S.W. 138 |
| Decision Date | 07 April 1919 |
| Docket Number | No. 13221.,13221. |
| Parties | TUCKER v. CARTER. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Callaway County; D. H. Harris, Judge.
"Not to be officially published."
Action by Carrie Tucker against T. Ed. Carter. Verdict and judgment for defendant, and plaintiff appeals. Affirmed.
N. D. Thurmond, of Fulton, for appellant.
J. R. Baker and D. W. Herring, both of Pillion, for respondent.
This is an action for damages based on the charge that in driving his automobile along the highway, and in meeting some cows driven by a boy, the defendant "negligently and carelessly ran his car at such speed that he ran his car against a Jersey cow" and injured her so that she had to be killed, to plaintiff's alleged damage in the sum of $75. The trial resulted in a verdict and judgment for defendant, and the plaintiff has appealed.
The plaintiff requested an instruction that, if the jury believed from the evidence that the defendant, while driving his automobile on the public highway, met and passed some cows, and that "while passing said cows he drove at such a rate of speed as to run against a cow of plaintiff," and injured her so that she had to be killed, then they should find for plaintiff. The court modified this instruction by inserting the words "negligently and carelessly" between the word "he" and the word "drove" in the portion quoted above. This modification was entirely proper. The suit was grounded upon negligence. Section 11 of the motor vehicle statute (Laws 1917, p. 413) does not make the driver of such a vehicle an insurer of persons or property on the highway.
Instruction No. 1 was properly refused for one reason, if for no other. It told the jury "there is no direct evidence as to the speed defendant was driving his car at the time of the accident," when there was direct and positive evidence as to such speed.
Plaintiff's refused instruction No. 2 was Properly refused. It made defendant an insurer of the safety of the cow, and told the jury that if the defendant ran against the cow and broke her leg so she had to be killed the verdict should be for plaintiff. Moreover, it erroneously told the jury that the value of the cow was $75.
We see no error in defendant's instruction No. 1. It told the jury that if the defendant was driving his car carefully and at a reasonable rate of speed, and the injury was caused solely by the cow suddenly and and unexpectedly turning from its course and crossing the road in front of the car, and that immediately and so soon as the cow turned from her course defendant used all the means in his power to stop and to keep...
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Johnson v. Ladd
...Co., 191 Cal. 195, 215 P. 675; Friedler v. Hekeler, 96 Conn. 29, 112 A. 651; Young v. Patrick, 323 Ill. 200, 153 N.E. 623; Tucker v. Carter (Mo. App.) 211 S.W. 138; Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. Blado v. Draper, 89 Neb. 787, 132 N.W. 410; Cheek v. Fox, 7 Tenn. Civ. App. 160; ......
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...403, 21 S.W.2d 496, 498; see Carr v. Threlkeld, Mo.App., 31 S.W.2d 592, supra; Shelton v. Rudd, Mo.App., 242 S.W. 151; Tucker v. Carter, Mo.App., 211 S.W. 138.3 Brandt v. Thompson, Mo., 252 S.W.2d 339, 341; Boone v. Richardson, Mo.App., 388 S.W.2d 68, 74; Freeman v. Myron Green Cafeterias C......
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