White v. Handy

• Citation: 245 S.W. 613
• Decision Date: 03 December 1922
• Docket Number: No. 3172.,3172.
• Parties: WHITE v. HANDY.
• Court: Court of Appeal of Missouri (US)

245 S.W. 613

WHITE v. HANDY.

No. 3172.

Springfield Court of Appeals. Missouri.

December 3, 1922.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by Paul White, by William White, as next friend, against Anna Handy. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Roy Coyne and Frank L. Forlow, both of Webb City, for appellant.

Walden & Andrews, of Joplin, for respondent.

COX, P. J.

Action for damages for personal injuries. Judgment for plaintiff for $500, and defendant appealed.

The charge in the petition is that defendant had parked her automobile on Main street in the city of Joplin, and that, in order for defendant to leave said point of parking, it was necessary to back her car out into the street before proceeding on her way; that "a large number of ears were parked along the same side of the street, and there was much travel along the street at that point, which made it necessary for defendant, before backing into the street, to give warning of her intention to back and to use care and caution in backing to avoid striking others in the street; that plaintiff was passing along said street on a bicycle, and as he passed the car of defendant she backed her automobile against his bicycle and knocked him off and injured him and broke and destroyed the bicycle. Defendant's negligence is charged in the following language:

"Plaintiff states that the defendant * * * carelessly and negligently failed to sound her horn, or to keep a lookout, or to keep in control of her car, and while plaintiff was riding his bicycle along Main street, and just as he arrived at the rear of defendant's automobile she carelessly and negligently, without warning or looking or using ordinary care, backed her car out and against the plaintiff."

The answer was a general denial and plea of contributory negligence.

The testimony on part of plaintiff tended to show that he was riding on a bicycle along Main street in the city of Joplin at a slow rate of speed and observing what might appear in front of him as a person on a bicycle would ordinarily do; that, as he came in the rear of defendant's car, she backed instantly and rapidly and struck his bicycle, which resulted in the injuries alleged; that defendant gave no warning; and that after plaintiff discovered that she was backing her car he did all he could to get out of the way and avoid being struck, but could not, and the collision resulted. The testimony for defendant tended to show that plaintiff was looking across the street and paying no attention to the cars in the street at the time of the accident; that defendant sounded her horn before beginning to back out into the street; and that she leaked back as she backed the car out and moved slowly. The testimony on the part of plaintiff and defendant was in sharp conflict as to the conduct of the parties and who was to blame for the collision, and hence that question was one for the jury.

The court at the request of plaintiff gave the following instruction to the jury:

"The court instructs the jury that, if you find and believe from the greater weight of the evidence that the defendant on the 15th day of September, 1920, had her car parked on the east side of Main street between Fifth and Sixth streets in the city of Joplin, and that said street at said place was much traveled by vehicles driving north and south, and that it was necessary for defendant to back out into said street before proceeding on her way, and that in so doing she was likely to back into vehicles and persons traveling on said street unless she gave a timely warning of her intention to back out by sounding the horn upon the car and by using such care and...