Vanneman v. Walker Laundry Co.

• Decision Date: 11 November 1912
• Citation: 150 S.W. 1128,166 Mo. App. 685
• Parties: VANNEMAN v. WALKER LAUNDRY CO.
• Court: Missouri Court of Appeals

150 S.W. 1128

166 Mo. App. 685

VANNEMAN v. WALKER LAUNDRY CO.

Kansas City Court of Appeals. Missouri.

November 11, 1912.

1. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREETS—INJURIES TO TRAVELERS IN COLLSIONS—CONTRIBUTORY NEGLIGENCE.

Where a bicycle rider on a street injured in a collision with a horse and wagon attempted to pass along the street while an automobile, an express wagon, and a laundry wagon were standing at the curbing, and the driver of the laundry wagon suddenly turned his horse around toward the bicycle rider at a time when he could not prevent colliding with the horse and laundry wagon, and he was taken by surprise at the unexpected conduct of the driver in turning the horse directly in his course, the latter was not guilty of contributory negligence in failing to exercise ordinary care.

2. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREETS—OBLIGATION OF TRAVELERS.

Every traveler on a street must exercise ordinary care, so that he may not interfere with its reasonable use by other travelers, and in populous cities, where people are passing on the streets in all kinds of vehicles and on foot, a person must be on the lookout to prevent collisions, and, where by his failure to exercise proper care he places another in peril, he will not be relieved from liability because he did not see such person in time to avoid injuring him, and where by the exercise of reasonable care he could have avoided the peril he is negligent.

3. MASTER AND SERVANT (§ 302)—LIABILITY FOR INJURIES TO THIRD PERSONS—SCOPE OF EMPLOYMENT—EVIDENCE.

One in charge of and driving his master's wagon is prima facie engaged in his master's business, and the master is liable for the driver's negligence resulting in injury to a third person.

4. MASTER AND SERVANT (§ 302,)—LIABILITY FOR INJURIES TO THIRD PERSONS—SCOPE OF EMPLOYMENT—EVIDENCE.

Where the driver of a laundry wagon went to see a sick friend, while so doing he was not within the scope of his employment, but when, leaving the sick friend, he started on his business route, he resumed at that moment his relationship as employeacute; in the discharge of his duties as driver, and the master was liable for his negligence causing injury to a third person.

5. TRIAL (§ 251)—INSTRUCTIONS—PLEADINGS —ISSUES.

Where the petition in an action for injuries to a traveler on a street in a collision with a horse and wagon of defendant charged a negligent failure of the driver to exercise ordinary care, an instruction requiring the defendant to mainain a lookout for plaintiff did not change the issues, for the instruction only required the exercise by defendant of ordinary care.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by James Vanneman by Eva Vanneman, next friend, against the Walker Laundry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Battle McCardle, of Kansas City, for appellant. Henry J. Latshaw, of Kansas City, for respondent.

BROADDUS, P. J.

The plaintiff, a boy of about 13 years of age, sues to recover damages for injuries he received as the result of the alleged negligence of a servant in defendant's employ. The defendant is engaged in the laundry business, in which it is necessary to use wagons for the purpose of receiving and carrying material to be laundered to its place of business, and afterwards returning it to the owners.

The evidence of the plaintiff is to the effect: That he was passing along on Fifteenth street riding a bicycle, gad while going at a moderate speed was injured by coming in contact with the legs of a horse attached to one of defendant's laundry wagons. That he was going west just north of the north rail of the street car company. That he first saw the defendant's wagon as he passed Holmes street, the horse facing west in front of a store and on the west of it was an automobile, and east of it was a big covered express wagon, all standing still at the curbing. The express wagon was almost against the laundry wagon, which was standing just in front of the store. That there was no one in the automobile, nor in the express wagon. That he had sufficient room to pass. That, when he got where his wheel was even with the back wheel of the laundry wagon, the driver, without looking around, suddenly pulled the horse around and he came in contact with the hofse's legs before he had time to pull away, but that he tried his best to do so, but failed. That in the effort to get away he got upon the car tracks about the center. That the horse got scared and started to run, and he believed it stepped on his ankle. That the driver gave no indication that he was going to turn his horse suddenly, and that he did not think that he was going to make the turn. The plaintiff received severe injury to his ankle, and his back was sprained, on account of which he suffered pain, and was confined to his home and away from school for about two months; that his back was still hurting him at the trial.

The evidence of Stitt, the driver of defendant's wagon, contradicts the statement of plaintiff in...