Vaugen v. Meier

• Decision Date: 18 December 1922
• Docket Number: No. 23079.,23079.
• Citation: 246 S.W. 279
• Parties: VAUGEN v. MEIER.
• Court: Missouri Supreme Court

246 S.W. 279

VAUGEN v. MEIER.

No. 23079.

Supreme Court of Missouri, Division No. 1.

December 18, 1922.

Motion for Rehearing Denied December 30, 1922.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Edward B. Vaughn against Rudolph Meier. Judgment for defendant, and plaintiff appeals. Reversed and remanded for another trial.

Mytton & Parkinson, of St. Joseph, for appellant.

John E. Dolman, of St. Joseph, for respondent.

SMALL, C.

I. Plaintiff sustained personal injury by being run into by defendant's automobile while upon the sidewalk at the southeast corner of Francis and Fifth streets in the city of St. Joseph. Plaintiff's evidence tended to show that the defendant Meier, on February 13, 1921, stopped his car in front of the Lyceum Theater, on the west side of Fifth street, a little south of Jule street; that Fifth street runs north and south, and descends to Francis street, which runs east and west, on nearly an 8 per cent. grade. When defendant stopped his car in front of the theater it was headed south towards Francis street, and was about six or eight inches from the curb. His wheels were parallel with the curb or more or less turned to the east, towards the center of Fifth street. The defendant Meier left his wife seated in the front seat and his two children in the rear seat, and went into the Elks' Club, on the east side of Fifth street, opposite to where he had left his car. Plaintiff's evidence also tended to show that it was the universal custom in parking cars on streets where the grade was as steep as it was on Fifth street, where this car was parked, to leave the wheels of the car turned against or towards the curb. Plaintiff's witness, Kart who attempted to stop the car after it had started, but failed to do so, testified ha chief for plaintiff:

"I did not see it when it stopped; I saw it before it started, and I saw it just after it started. There was a lady and two children in the car; the children were in the back seat; the lady seemed to be in the front seat. She was not doing anything with the drive wheel when it started; she seemed to be sitting real quiet there to me; I do not think any one did anything to start the car; I do not think there was any one around the car except the occupants; it must have just started off; I saw it just when it was moving down. The car got right out in front of me, and I run out on the other side and tried to get the brake on it. I went to the rear of it, and by the time I got on and tried to grab the brake it was going pretty fast, and I jumped off, because I had left the box office alone, and there was lots of money in there, and I am responsible for it. I did not have anything to do with changing the direction the car was going; I did not touch the wheel in any way, that I know of. The wheels were wobbling, I guess; they went down towards the bank. The speed of the car was increasing all the time; that was why I jumped off."

On cross-examination he said:

"I tried to grab the brakes, did not get inside the car, stood on running board with my hand on the open door. Did not touch the wheel; did not take the wheel and try to stop the car; could not stop the car by taking hold of the wheel; I knew how to stop that ear; if I had had a chance to get in the car I would have gotten my foot on the brake. I was prevented from getting into the car because it was going too fast; I was taking too much of a chance. The car had moved about 35 or 40 feet when I got onto it. I tried to get the hand brake; I was too late to get the foot brake; I did not touch the wheel."

This witness' testimony further tended to show that there was little, if any, crown in the pavement on Fifth street, and that therefore the car, if the wheels were turned towards the center of the street, would naturally go eastwardly or diagonally across the street; that he Saw the defendant's car stopped and parked where it was 10 or 15 minutes before it started to move; that defendant's wife and children jumped out as soon as the car started, and no one was in the car when he jumped onto it or when he jumped off, and the car went on down Fifth street without an occupant, towards Francis street. Plaintiff's testimony further showed that just before the car started to move south a big fire truck had passed up and down in front of it, and the car moved just after the truck passed.

Defendant's evidence tended to prove: That defendant left his car parked parallel with the curb and 6 or 8 inches from it; he did not remember whether the wheels were turned towards the curb or not. The brakes were in good order, and were set, and the car remained in place for half or three-quarters of an hour. That there was no universal custom to have the wheels turned in towards the curb when parked on such streets, if the brakes were set. That just after the fire truck passed the car started to move down hill of its own accord, and defendant's wife and children jumped out. They did nothing to start the car, and no one else was near it. That there were cars parked just south of the Elks' Club, on the same side of the street where defendant's car was parked, which would have prevented it from striking the plaintiff had it taken the natural course and followed the curb in its downward course, instead of turning out towards the east and going southeast, to...