Young v. Bacon

• Decision Date: 11 March 1916
• Docket Number: No. 1508.,1508.
• Parties: YOUNG v. BACON.
• Court: Missouri Court of Appeals

183 S.W. 1079

YOUNG v. BACON.

No. 1508.

Springfield Court of Appeals. Missouri.

March 11, 1916.

Rehearing Denied April 3, 1916.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Suit by Nathaniel Young against Carrie B. Bacon. From a judgment for plaintiff for $1,600, defendant appeals. Affirmed on condition a $600 remittitur be filed.

Sheppard & Sheppard, of Poplar Bluff, for appellant. David W. Hill, of Poplar Bluff, for respondent.

STURGIS, J.

The plaintiff recovered, and defendant appeals from, a judgment for $1,600, in a trial by jury, for personal injuries caused by being run down and struck by an automobile owned by defendant and being driven by defendant's chauffeur. The plaintiff alleges that, while he was walking south on a public road near the city of Poplar Bluff, the defendant and her employés, driving her motor car in the same direction, negligently failed to signal or warn plaintiff of the approach of defendant's automobile, and negligently failed to stop said automobile so as to prevent same from colliding with plaintiff, when they at all times knew or by the exercise of lawful or even ordinary care could have known of plaintiff's position and peril. The answer, after a general denial, alleges that whatever injury was sustained by the plaintiff was caused solely by plaintiff's negligence directly contributing thereto, in that, at the time plaintiff alleges he was injured, he negligently and carelessly stepped from a position of safety in the middle of the road to a position directly in front of the automobile, and that plaintiff negligently and carelessly failed to heed the warnings given by the occupants of defendant's automobile.

Stating the facts favorably to plaintiff, as we must do on this appeal, the plaintiff was walking along this road going south. The defendant's car came into this road on another road from the west at a point some 75 or 100 feet north of the point of collision and turned south, following plaintiff, who was thereafter in plain view. The driver of defendant's car could not well see plaintiff till the car turned the corner, on account of a building at such corner obstructing the view. When the defendant's car turned this corner, another motor car was about the same distance, that is, about 75 or 100 feet, in front of plaintiff coming north, and the two cars had hardly passed each other when defendant's car struck the plaintiff. The road was graded up at this point some 4 or 5 feet, the graded roadway being some 18 to 20 feet wide and nearly level. Each of the motor cars keeping to the right as they approached each other, the defendant's car was on the west side of the road. The plaintiff was struck by the right, or west, end of the "bumper" of defendant's car, falling against the fender of the right front wheel, and was so close to the west side of the roadway as to roll or be knocked off the dump down into the ditch. The plaintiff testified that he was knocked unconscious and the last he remembers he was walking south along the part of the roadway on the west side used as a path. He also testified that he heard no warning signal from the defendant's car approaching him from the rear, and had no knowledge of such car's approach, and did not know what had hurt him until afterwards informed. There is much evidence to the effect that defendant's car gave no alarm signal after turning the corner to go south, if at all. The sound of any signal given before reaching the turn in the road would be obstructed by this house on the corner. Nor did defendant's car slow up its speed after turning such corner. It was running 6 to 8 miles per hour when turning the corner and at the time of striking plaintiff. At such speed it could, with the brakes and appliances in use and which were working well, be stopped in 12 to 15 feet, and it did not stop until that distance or more after the collision. There is substantial evidence that the brakes were not applied at all before such collision. There is also evidence to the effect that, as defendant's car approached the other car, meeting it, the defendant's car was headed so as to be about to collide with that car, and that it was then swerved to the right, and the wheels came close to the edge of the west embankment.

In explanation of these facts, it is shown that defendant's car was being driven by a young negro boy who was then learning to drive. Beside him sat an experienced driver, who was giving him instructions in this art. Shortly before the collision, this instructor took hold of the steering wheel and attempted to guide or help guide the car.

Defendant alleges in her answer that plaintiff stepped from a place of safety in the middle of the road to a position immediately in front of the car, but her evidence in that respect is that he stepped from the path on the west side toward the middle of the road in front of the car. The plaintiff's evidence is that he did neither. The assistant driver says that the plaintiff stepped over to near the middle of the road when the car struck him, but this is denied by several other witnesses and is discredited by the fact that plaintiff was so near the west side when struck as to fall over the embankment — this under defendant's contention that the car was not running fast; that plaintiff had no bones broken; that he merely fell to his knees and was not struck hard or seriously injured. The negro driver and the driver of the other car say that plaintiff was walking along the west side of the road and when struck was 1½ or 2 feet from the edge of the driveway. All the witnesses, including both drivers, agree that plaintiff did not look around or indicate that he was aware of the approach of defendant's car.

Under the facts which the jury was justified in finding, there is a clear liability, and the court did not err in overruling the demurrer to the evidence. By statute it is made the duty of drivers of automobiles on public roads to "use the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on, or traveling over, upon or across such public roads." Section 8523, R. S. 1909; Roberts v. Trunk, 179 Mo. App. 358, 368, 166 S. W. 841; McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972; Nicholas v. Kelley, 159 Mo. App. 20, 24, 139 S. W. 248. The plaintiff had an equal right with defendant to the use of this road. We may grant that a foot traveler, when he can do so reasonably, ought to move out of the path of a coming automobile, and would be held guilty of contributory negligence for not doing so when he knew that he was within the danger zone. Here the jury had a right to find, under the evidence, that plaintiff was not walking in that part of the road generally used by automobiles, but on the part used as a path for pedestrians. The plaintiff ought not to have been expected to step clear off this dump 4 or 5 feet high, and the evidence is that the wheels of defendant's car passed close along the edge of the graded roadway. Nor should he have been expected to step into the danger zone of the other car, nor to hazard occupying the narrow space that might be left between the two. In fact, if he was in or close to the pathway of the other car coming toward him, defendant's driver ought to have anticipated that he would probably step toward defendant's side. Moreover, there is strong evidence that plaintiff did not know of defendant's car approaching from the rear because of no signals being given within his hearing distance, and, if such signals were given, his every action and attitude indicated to the driver that he was not hearing, and therefore not giving heed to, the same. The vigilant watch doctrine applies here (McFern v. Gardner, supra), and there is no good reason why the driver did not see plaintiff as soon as the car turned the corner, and he acknowledged that he did then see him, but thinks he was not more than about 50 feet from him. The driver also saw the other car coming, and could readily have told that the...