Underwood v. Hall
| Decision Date | 03 March 1928 |
| Docket Number | No. 4271.,4271. |
| Citation | 3 S.W.2d 1044 |
| Parties | UNDERWOOD v. HALL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.
Action by John Underwood against Charles Hall. Judgment for plaintiff, and defendant appeals. Affirmed.
Henson & Woody, of Poplar Bluff, for appellant.
Phillips & Fulbright, of Poplar Bluff, for respondent.
This is an action for personal injury alleged to have been received in an automobile collision. The cause was tried to a jury resulting in a verdict and judgment for plaintiff. Motion for a new trial was overruled and defendant appealed.
Plaintiff alleges that on August 23, 1925, while riding in a Ford automobile driven by Tom Boyett in a southern direction on the west side of highway No. 23 in Butler county, the defendant's agent and chauffeur, Joe Williams, driving defendant's Ford automobile north on said highway, without looking to accertain the situation, and without warning drove defendant's automobile against the one in which plaintiff was riding, resulting in the injuries complained of. The answer was a general denial and a plea that whatever injuries plaintiff sustained were caused by the negligence of Boyett who was driving the automobile in which plaintiff was riding. The reply was a general denial.
Plaintiff is a blacksmith and resides at Doniphan, Mo. August 23, 1925, he and others went to Poplar Bluff with Tom Boyett. They left Poplar Bluff for Doniphan in the late afternoon, plaintiff riding in the front seat with Boyett, who was driving. There were three or four in the rear seat. Plaintiff's evidence tends to show that while Boyett, about 8 o'clock p. m., was driving south at about 20 miles per hour, and on the right-hand side of the road, Joe Williams, who was driving defendant's automobile, at about 20 miles per hour, pulled out from behind an automobile traveling north and immediately in front of Williams and pulled over to the west side of the middle of the road, and that such conduct on the part of Williams was the cause of the collision. Plaintiff's evidence tends also to show that Boyett, in an endeavor to avoid a collision, attempted to turn to the east, but that about that time Williams also turned back to the east, and that the collision followed.
Plaintiff's instruction No. 1 discloses the theory of plaintiff's case and is as follows:
"The court instructs the jury that, if you find and believe from the evidence that on the 23d day of August, 1925, plaintiff was riding in an automobile being driven by Tom Boyett, in a southern direction on the right-hand side of the public road described in evidence, and that the defendant, by and through his chauffeur or servant, if any, was driving his said automobile along said highway in a northern direction closely following an automobile proceeding in the same direction, and that about the time the automobile which plaintiff was riding, and while said last-mentioned car was but a short distance from defendant's said car, that defendant, through his said chauffeur or servant, if any, suddenly and negligently turned defendant's car in a westerly direction, out from behind the car it was following, if any, and drove defendant's car across said highway at a high rate of speed, and then attempted to change the course of said car back to the right side of the road, but before he was able to do so, said car was struck by the automobile driven by Tom Boyett, and as a direct result thereof, and of the negligence, if any, of the defendant aforesaid, and through no fault or negligence on the part of plaintiff, or Tom Boyett, contributing thereto, plaintiff was injured, if at all, as described in evidence, then and in that event your verdict will be for plaintiff."
It is contended that plaintiff pleaded one cause of action and recovered on another and different cause. This contention is based upon the variance between the petition and the evidence as to which of the automobiles ran against the other. The petition alleges that Williams drove defendant's automobile into and against the automobile in which plaintiff was riding. The evidence shows that the left front wheel of Boyett's automobile ran against defendant's automobile at or near the junction of the left front fender and the...
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