182 Mo. App. 315 | Mo. Ct. App. | 1914
Plaintiff, not quite sixteen years old, was engaged in Messenger Service. On November 27, 1912, in going east on the right-hand side of Fifteenth street in Kansas City Mo., riding a bicycle
He brought this suit by next friend charging that the collision was the direct and proximate result of the negligence of defendant’s servant in driving said van on the left-hand side of the street in violation of an ordinance of the 'city which required that “Every person using any vehicle on any street in the city of Kansas City, shall operate, drive or ride such vehicle on the portion to the right of the center of the street, except where the right side of the street is in such condition as to be impassable.”
A jury in the circuit court heard the evidence and returned a verdict for $800. Defendant appeals, and claims that his demurrer to the evidence should have been sustained because plaintiff was guilty of contributory negligence. Of course, before such claim can be effectual here, plaintiff must be guilty of contributory negligence as matter of law. Contributory negligence as a jury question has been set at rest by the verdict, and if the case presents it as no more than a jury question, we ought not to interfere and shall not.
A reading of the record clearly discloses that it was merely a question for the jury. Plaintiff cannot be held guilty of contributory negligence as a mere cold proposition of law. A statement of the facts will demonstrate this.
Campbell street, thirty-six feet wide from curb to purb, runs north and south. Fifteenth street runs east and west and crosses Campbell, of course, at right angles. Prom the west line of Campbell street west, Fifteenth street, between curbs, is forty-nine feet wide; while from the east line of Campbell street east, Fifteenth street is seventy-six feet wide from curb to
Campbell street, south of Fifteenth, was paved and in good condition. There was, therefore, no reason for defendant’s wagon being on the left side of the street, and its being there was in violation of the ordinance. If such act proximately caused plaintiff’s injury, and his negligence did not contribute thereto, defendant is liable. [Jackson v. Kansas City, etc. R. Co., 157 Mo. 621, l. c. 634; Brannock v. Elmore, 114 Mo. 55, l. c. 59; Dahlstrom v. St. Louis, etc. R. Co., 108 Mo. 525.] Plaintiff, in the absence of notice to the contrary, had a right to rely upon the assumption
Plaintiff cannot be held conclusively guilty of contributory negligence because he did not see the wagon or team in time to stop. He was not going at a negligent rate of speed. He was not approaching a situation known to be dangerous. It is not like a case where one is approaching a railroad crossing which is of itself a danger signal. He would cross a street car track a few feet further on it is true, but, at the speed he was traveling, his machine was under sufficient control to have avoided the danger had it been even so little further on as that.
Neither can it be said that plaintiff was negligent in turning to the south in the attempt to avoid the collision, or in not seeing the horses heads before he was so close to the intersection. Until he was within thirty feet thereof an automobile in front of him and going in the same direction obscured his view. This automobile suddenly increased its speed, going east, and swerved a little to the north to get across Campbell street in front of the team. Plaintiff could not follow in the wake of the automobile and also cross in front of the team because the team kept on coming north intercepting plaintiff from following the automobile. It was at this moment plaintiff first had notice that the defendant’s wagon was on the wrong side of the street and only three or four feet from the west curb thereof.
Just north of the north track in Fifteenth street was another of defendant’s wagons going north on Campbell, and a street car going west on Fifteenth came behind this wagon as it cleared the track. The automo
Error is also charged because of slight modifications made by the court in instructions, but these complaints are without merit. The instructions fairly and clearly presented the issues to the jury. It found a verdict for plaintiff. It is a reasonable one and the evidence fully justified it. The judgment is, therefore, affirmed.