Zimmer v. Daugherty

• Citation: 32 S.W.2d 765
• Decision Date: 02 December 1930
• Docket Number: No. 21291.,21291.
• Parties: ZIMMER v. DAUGHERTY.
• Court: Court of Appeal of Missouri (US)

32 S.W.2d 765

ZIMMER v. DAUGHERTY.

No. 21291.

St. Louis Court of Appeals. Missouri.

December 2, 1930.

Rehearing Denied December 16, 1930.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Action by Henrietta Zimmer against John Daugherty. From an order granting the plaintiff's motion for new trial after verdict for defendant, defendant appeals.

Affirmed and remanded.

Spradling & Dalton, of Cape Girardeau, for appellant.

J. Grant Frye and Dearmont & Russell, all of Cape Girardeau, for respondent.

HAID, P. J.

This is an appeal from an order granting a motion for a new trial in which a verdict was returned in favor of the defendant.

The amended petition is founded entirely upon the humanitarian doctrine. The answer is a general denial coupled with a plea of contributory negligence and the additional plea that the injury was due to an accident, unavoidable so far as the defendant was concerned, occasioned by the plaintiff suddenly running in front of the automobile so that it was impossible for the defendant to avoid striking her.

The defendant assigns a number of errors, among them, that the court erred in not sustaining the defendant's demurrer at the close of all of the evidence, second, that the court erred in holding that defendant's instruction No. 5 was erroneous.

Upon the first question above stated it is necessary that the entire evidence be considered (Erxleben v. Kaster [Mo. App.] 21 S. W.[2d] 195, loc. cit. 196, and case cited), and in considering the evidence we must regard the testimony for the plaintiff as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and the defendant's evidence must be taken as false where it is contradicted by that of the plaintiff. Erxleben v. Kaster (Mo. App.) 21 S. W.(2d) 195, loc. cit. 196 and case cited, and plaintiff must also be given the benefit of any favorable evidence in behalf of defendant. Zlotnikoff v. Wells, 220 Mo. App. 869, 295 S. W. 869, loc. cit. 131 and cases cited.

A statement of the evidence, disclosed by the record, is as follows: One of the witnesses testified that at the time of the accident he was inside of an oil station on the south side of West Main street in the city of Jackson, Mo., close to the place of the accident; that he noticed the plaintiff when she left the sidewalk on the north side of the street; that it was a cloudy day, had been drizzling, and the plaintiff had a gallon tin bucket in her hand and was carrying an umbrella over her head; that she left the sidewalk and proceeded in a southeasterly direction at an angle of about 45 degrees; that the defendant was driving a Ford coupé and that witness did not hear the sounding of a horn; that he saw defendant's machine hit the plaintiff at a time when she was eight or ten feet from the south curb of the street; that the defendant stopped between twenty and thirty feet after his car struck the plaintiff; that there were no cars in either direction at or near the point of the accident. On cross-examination he testified that the accident happened just west of the filling station where the street is forty feet wide; that the plaintiff was going along the street diagonally across with her head up in that portion of the umbrella which covered her, proceeding southeast while the defendant was driving in an easterly direction; that in his judgment the plaintiff was between six and eight feet from the sidewalk at the time she was picked up.

Another witness testified that some time after the accident the defendant told him he saw plaintiff a block and a half ahead before he struck her.

Other witnesses also testified to the fact that the defendant informed them he had seen the plaintiff a block and a half from the place of the accident.

Plaintiff herself testified that before she attempted to cross the street she looked in either direction, saw no cars, and then proceeded across the street; that she had arrived at a point more than halfway across the road when defendant's car struck her; that she did not hear the blowing of a horn, but admitted that she was rather hard of hearing; that she did not run in front of the car; that she was hit immediately after she discovered the car; that she did not tell defendant that when she heard the car she ran for the sidewalk as fast as she could; that she did not run.

The defendant himself testified that he came off of Daisy avenue about two blocks west of the filling station referred to, looked down the street, and saw plaintiff stepping off the north sidewalk at the corner of the next block; that she was holding an umbrella in her right hand and down over her head, that his machine and plaintiff were going practically in the same direction, he going east and she diagonally east; that he sounded his horn as he came down the south side of the road before plaintiff crossed the center of the street, at which time he was traveling at about twelve miles per hour, and that when his machine was ready to pass her, plaintiff turned directly south to the nearest point of the sidewalk and ran in front of his machine; that she ran about eight feet from the time she started until she got in the path of the automobile, at which time he saw no way to avoid striking her, but swerved the car to the left as short as he could and struck her with the right front fender; that at the time he struck plaintiff he did not think he was running over six miles an hour; that when he saw plaintiff running and coming in the path of his car, he put his foot on the brake and tried to cut in behind her to the left to avoid striking her; that she was so close he could not avoid hitting her; that when she came in the path of the car she was about six feet in front of it.

On cross-examination he testified that after he came off Daisy avenue into Main street he saw plaintiff stepping off of the sidewalk on the north side of the street and saw her from then on every time he would look that way, and she was still going down diagonally across; that when he got within a half block of her he blew his horn; that plaintiff did not look up and gave no evidence of having heard the horn; that he was then proceeding at about twelve miles per hour; that he was on the south side of Main street, going east, and when he had reached a point about thirty or forty feet from plaintiff he again blew his horn; that plaintiff gave no indication of having heard the horn again and he continued to go on east; as plaintiff continued her way diagonally across Main street walking in a southwardly direction, she started to run for the sidewalk, for the nearest point, which changed her course; that he did not know whether plaintiff was conscious of the fact that he was coming and that if she had continued as she had been doing he had plenty of room to pass and would have passed her if she had not run in front of him; that he could have turned off to the north side of the street and missed her; that the south side of the street was his side of the street; that as plaintiff went, if he had turned to the north side of the street, he would not have hit her; that there was plenty of room to have passed on the north side; that when running ten miles an hour he could have stopped the car within twenty or twenty-five feet; that he could have traveled fifty feet after he blew his horn the second time and...