166 Mo. App. 685 | Mo. Ct. App. | 1912
— The plaintiff, a boy of about thirteen years of age, sues to recover damages for injuries he received as the result of the alleged negligence of a servant in defendant’s employ. The defendant is engaged in the laundry business, in which it is necessary to use wagons for the purpose of receiving and carrying material to be laundered to its place of business, and afterwards returning it to the owners.
The evidence of the plaintiff is to the effect, that he was passing along on Fifteenth street riding a bicycle, and, while going at a moderate speed, was injured by coming in contact with the legs of a- horse attached to one of defendant’s laundry wagons;' that he was going west just north of the north rail of the street car company; that he first saw the defendant’s wagon as he passed Holmes street, the horse facing west in front of a store and on the west,of it was an automobile, and east of it was a big covered express wagon, all standing still at the curbing; the-express wagon was almost against the láundry. wagon, which was standing just in front of the store; that there was no one in the automobile, nor in the express wagon; that he had sufficient room to pass; that when he got where his wheel was even with the back wheel of the laundry wagon, the driver, without looking around,
The evidence of Stitt, the driver of defendant’s wagon, contradicts the statement of plaintiff in most important particulars. lie further testified, that he drove up to the place in question to visit his roommate, who was sick, and that he came down and got into the wagon and started on his route towards Holmes street.
The allegations of the petition are to the effect, that the defendant’s driver was negligent in starting the horse and turning it into the street in front of plaintiff’s at a time when the latter was so near to the horse that it was impossible for him to stop his bicycle or turn aside to avoid the collision; that the driver was negligent in so starting, the horse without looking to see whether plaintiff or anyone else was approaching; that the driver was negligent in neglecting to exercise ordinary care to look for approaching vehicles, pedestrians and other travelers before so turning his horse and wagon; that he was negligent in failing to warn plaintiff that he intended to start his horse and wagon; that the driver knew, or by the exercise of ordinary care could have known, of the perilous position of the plaintiff; that the driver by the exercise of ordinary care could have seen that
The answer consists of a general denial, and that plaintiff’s injuries, if any, were the direct and sole result of his own negligence; and further, that the acts of negligence charged were not done by any one in the service of defendant, or in furtherance' of any duty 'owed by such to defendant and defendant is not liable for the consequences thereof:
The defendant tendered a demurrer to plaintiff’s case, which the court overruled. Among other instructions, the court gave the following to the jury: “The court instructs the jury that if you find and believe from the evidence in this case that on February 28, 1910, plaintiff was riding a bicycle west on the north side of Fifteenth street, and that said Fifteenth street was a public street and thoroughfare in Kansas City, Missouri, at said date, and that as plaintiff got within a few feet of the wagón in evidence the driver of said wagon carelessly and negligently turned said wagon out into the street, and to the south or southwest without looking to see if plaintiff was coming, providing you further find and believe from the evidence that a failure of the driver, to so look was negligence under all the facts and circumstances in evidence, if any, and at a time when plaintiff could not by the exercise of ordinary care avoid a collision with said horse and wagon and that a collision between said horse and wagon and said bicycle did then and there take place, and that plaintiff was thereby injured, and that said horse and wagon belonged to defendant and that the driver thereof was in the em
The jury returned a verdict in the sum of $500 in plaintiff’s favor. Defendant appealed from the judgment.
The defendant makes the following assignment of error: First, that of contributory negligence on the part of the plaintiff. Second, that there was no proof of negligence on defendant’s part. Third, that there was no evidence that the alleged acts of the driver were within the scope of his employment, or while engaged in the line of his duty. Fourth, that plaintiff’s instruction changed the issues made by the pleadings, in that, it required defendant to maintain an outlook for plaintiff alone, instead of requiring the exercise of ordinary care; in that, it made defendant liable for the mere striking of plaintiff by the horse, and ignored the issue, made by the pleadings and proof, as to whether defendant saw or could have seen plaintiff in time to have avoided the accident.
It is contended that plaintiff was negligent in failing to exercise ordinary care. The evidence tended to show that he was passing along the street on his bicycle where he had the right to go; that the automobile, the express wagon and laundry wagon were standing; and that the driver got into the wagon and suddenly turned the horse around towards plaintiff at a
Assuming that the statements of plaintiff are true-we are of the opinion that the driver of the wagon was guilty of culpable negligence. The streets and highways are for the use of the traveling public. Everyone, while traveling on a street, is required to exercise ordinary care so that he may not interfere with its reasonable use by other travelers. In populous cities like Kansas City where people are passing upon the streets in all kinds of vehicles, on foot and on horseback, a person is required to be on the lookout to prevent collisions. ITe cannot shut his eyes or fail to exercise his senses so as not to see what is going on and justify his conduct, in the event he caused any injury to some one else, on the'ground that he did not see the danger until too late to avoid injuring him. If by his failure to exercise proper care for the safety of others he has placed a person in peril, he will not be justified because he did not see him in time to avoid injuring him. If by the exercise of reasonable care he could have avoided the peril, he is negligent. And such is the theory upon which plaintiff’s cause of action is founded. [Fleishman v. Ice & Fuel Co., 148 Mo. App. 117.] It seems to us that the proposition is too plain to require elaboration or citation of precedents.
"We think it was sufficiently shown that the driver of the wagon at the time was engaged in his master’s service. It is admitted that he had charge of and was driving the defendant’s laundry wagon. It has been held that similar proof constituted prima facie evidence that he was engaged in the master’s business. [Fleishman v. Ice & Fuel Co., supra.] The plaintiff’s case, however, does not depend upon this presumption,
The objection to plaintiff’s instruction, that it required defendant to maintain a lookout for plaintiff, instead of requiring the exercise of ordinary care, is purely technical. The instruction did require the exercise of ordinary care. Its particular application to plaintiff does not make it bad, for the defendant owed the duty of exercising such care to plaintiff as one of the travelling public.
The other objections to the instruction have been answered by what has been already said. The cause is affirmed.