193 Mo. App. 402 | Mo. Ct. App. | 1916
Plaintiff’s electric car, driven by Ms wife who was its sole occupant, collided with a seven passenger gasoline car owned by defendant and driven by his chauffeur, and this suit is to recover damages for the injuries sustained by plaintiff’s car in the collision. Defendant answered and filed a counterclaim for the damages to his car. Each party contends that the collision was caused by the sole negligence of the other. A jury was waived and the court rendered judgment for plaintiff on his cause of action and on the counterclaim. No declarations of law were asked or given. Defendant appealed and argues that the judgment is wholly unsupported by the evidence which shows beyond question that the collision was the result of negligence of Mrs. Barton in the operation of plaintiff’s car.
The collision occurred shortly after five o’clock, May 1, 1914, on Gillham Road, a boulevard in Kansas City. Coming from the south this boulevard, which is one hundred feet wide, divides some distance south of Thirty-ninth street (an east and west street) into two branches, one called West Gillham Road — -running northwesterly across Thirty-ninth street — and the other Harrison Boulevard, sometimes called East Gill-ham Road, running northeasterly. From the crotch of
Defendant’s automobile running down gradé at a speed variously estimated by the witnesses at from eighteen to thirty miles per hour came from the northeast on Harrison Boulevard pursuing a course near to but on the left of the center line. At the same time the witness Breyfogle was approaching in his automobile from the northwest on West Grillham Road at about the same speed and distance from the junction. Just
The chauffeur and other witnesses for defendant testified to facts tending to show that the abrupt turning of defendant’s car to the left just before the collision was compelled by an eccentric and not to be anticipated turning of the Barton car from its apparent course to one which brought it into the path of defendant’s car under conditions which made it'impossible for the chauffeur to avoid a collision, either by stopping or swerving his car to the right. In substance they say that the Barton car, instead of indicating a purpose of its driver to turn into Harrison boulevard, proceeded northward towards the apex of the triangle as though to proceed along West Gillham road, until it reached a point approximately twenty-five feet west of the Harrison Boulevard course when, suddenly and without warning, it turned east almost at right angles to the course it had been pursuing and ran straight across in front of defendant’s car which was following the center line of Harrison Boulevard. There were no other cars or vehicles in the way but defendant contends that the chauffeur in turning sharply to the left took the only chance of escape left open to him, since the cars were too close for a collision to be avoided by stopping and a turn to the right inevitably would have resulted in a straight head-on collision.
There is substantial evidence introduced by plaintiff to show that the Barton car at no point failed to keep to the east or right side of the G-illham-Harrison median line. Coming up Grillham road it ran on the east side but there was an automobile standing in the road near the east line in front of the Park Board stable and the Barton car curved towards the center of the road to pass around that car and then back towards a course near the east line and was thus drawing away from the middle of the road when the collision became imminent because of the facts that defendant’s car was running at excessive speed on the left side of the road and the chauffeur was inattentive to the course in front of him. The speed of the Bar
Where no declarations of law are asked or given in a law case tried without a jury a judgment for the plaintiff will not be reversed if it can be justified on any theory of the law applicable to the evidence most favorable to the pleaded cause of action. [Paine v. O’Donnell, 178 S. W. l. c. 874; Winfrey v. Matthews, 174 Mo. App. 713; Sommer v. Bryson, 168 Mo. App. 335.] Of course if there is no evidence to support the judgment the appellate court will interfere though no declarations of law were asked. [Hubbard v. Fuchs, 164 Mo. l. c. 430.] Counsel for defendant recognize these rules and exert themselves to maintain their position that the evidence shows indisputably that the collision was caused by the sole negligence of Mrs. Barton.
We do not entertain this view of the evidence. We must assume — there being substantial evidence to support such conclusion — that defendant’s car approached the point where the danger of a collision arose" at speed in excess of that prescribed by law and in violation of the rule requiring it to run on the right side of the road. It is negligence per se for an autoist to run his car in excess of ordinance speed and if such negligence is a contributing cause of the infliction of an injury to him or his car, he will not be allowed to re-j cover damages from another whose negligence also contributed to the injury. The court could not well have done otherwise than to find against defendant on his counterclaim, since the fact of the excessive and
We need not go further into an analysis of the evidence; suffice it to say that the evidence, as a whole, presents the issue of Mrs. Barton’s alleged negligence as one of fact which the court, sitting as a trier of fact, has settled in favor of plaintiff. The demurrer to the evidence was properly overruled.
- The witness Breyfogle was permitted to testify to a statement made to him by the chauffeur at the scene of the collision, shortly after it occurred, relating to the cause of the collision. Defendant contends this was hearsay evidence which should, not have been admitted, but since no objection on that ground was interposed at the time the evidence was offered, the objection'was waived and cannot now be considered. [Jordan v. Telephone Co., 136 Mo. App. l. c. 202; DeMaet v. Storage etc. Co., 231 Mo. 1. c. 620; Longan v. Weltmer, 180 Mo. 322.]
Mrs.-Barton testified that she was going to her home which was at 31st and Harrison streets, a mile or more to the northeast of the place of ^collision and, over the objection of defendant, was permitted to state that she intended to proceed along Harrison Boulevard — her most direct course. There are instances where the plan or intention of an actor or doer is held to possess probative value in an action involving a
In view of the conceded fact that defendant’s car was running in excess of ordinance speed, it is difficult to perceive any good reason for the contention that prejudicial error was committed in allowing Mrs. Barton to testify that the car was “going fast” and that objection must also be ruled against defendant.
The point of newly discovered evidence in defendant’s motion for a new trial did not afford a sufficient reason for granting a new trial. The newly discovered evidence consisted of a map of the scene of the collision drawn to scale and a photograph of the place. The map and photograph do not throw any additional light on the subjects in controversy and if they did, there was no reason for defendant to wait until judg
There i§ no prejudicial error in the record and the judgment is affirmed.