Yerger v. SmithYerger v. Smith
Plaintiff was injured October 12, 1931, while riding as a guest or passenger in an automobile owned by the lumber company and driven, at the time, by defendant, Reis. Plaintiff‘s injuries were caused by the automobile running аgainst a mule on Highway No. 61 a short distance south of the city of St. Louis. The mule was owned by Smith and was, at the time, in charge of defendant Clay, Smith‘s agent and employee. Clay was riding one mule and had another along.
It is alleged that defendants, Smith and Clay, were negligent: (1) In riding the mules on the traveled portion of the highway while it was dark and raining and the mules could not be seen; (2) in riding the mules in such manner as to block the traveled portion of the highway when it was dark and raining; (3) in riding and leading the mules on the highway when it was dark and raining without carrying a lantern or giving a warning of the presence of the mules; and (4) in not riding the mules as close to the right-hand side of the highway as was practicable under the circumstances. The petition alleges that defendants, Reis-Moran Lumber Company and Reis, were negligent: (1) In failing to sound the horn or give warning of the approach of the automobile; (2) in driving the automobile at a dangerous and excessive rate of speed and at a rate of speed so as to endanger the life, limb and property of another and more particularly plaintiff; (3) in failing to keep the automobile as close to the right hand side of the highway as was practicable when in operation; and (4) a violation of the humanitarian rule. The defendants answered separately by general denials.
Defendants, Smith and Clay, assign error: (1) On the refusal of their separate requests at the close of the case for a directed ver
Stated most favorably for plaintiff, the evidence tends to show the following facts: On the day of plaintiff‘s injury he had unloaded a car of coal for the defendant, Reis-Moran Lumber Company, at Mehlville, a short distance south of the city of St. Louis on Highway No. 61. About five-thirty P. M., and after plaintiff‘s day‘s work was done and after he had gone to his father‘s home near by, and at the father‘s home, plaintiff was asked by defendant Reis, if he, plaintiff, “wanted to ride along with him to the airport,” which was in Illinois, but not far away. Defendant Reis had arranged for a truck to haul an airplane back from the airport. The lumber company was not concerned about the airplane. Plaintiff and Reis left Mehlville around six-thirty P. M. in a Chevrolet coupe, owned by the lumber company and driven by Reis as stated. Reis had finished his day‘s work, but had not had supper and he intended to go by his home, which was eleven miles from Mehlville, for supper before going to the airport. It was dark, misting rain and foggy. Highway No. 61, at all places concerned was about forty feet in width and had four traffic lanes, each lane about ten feet in width. The width of the highway had been recently increased and Smith had a contract in connection with this improvement. A new slab of concrete about ten feet in width had been added on each side of the old roadway. The new slabs were light in color and the two old center slabs or lanes were of asphalt and were dark. A dirt shoulder about nine feet in width was on each side of the roadway, but the shoulders were new and soft. When plaintiff and defendant Reis left Mehlville, they proceeded north on the east lane of the asphalt. About a mile north and shortly after they left Mehlville, the automobile collided with a mule, ridden by defendant Clay, and traveling north on the same dark colored traffic lane on which Reis was driving, according to the evidence of defendant Reis who was called as a witness for plaintiff. There was another mule, according to Reis, “about four and a half feet or five feet” from the east edge of the east lane, and the mule that was struck was “about four feet” from “the middle of the road,” and these mules, according to Reis, had on the harness and “were hitched together with a rope.” Defendant Clay, who had been “moving dirt from” a basement in Mehlville that day for Smith, was on his way to the camp with the mules after the day‘s work. Clay had no light or
Defendant Clay, as a witness for himself and Smith, testified that he was riding the mule that was struck; that there were only two mules along, and that he wаs riding one and leading the other; that both were on the east lane of the roadway, and the one he was leading “was right at the curb,” and that the one he was riding was just to the left of the one he was leading, “as close up as it could get;” just close enough for the two “to walk along side by side.” The mule, Clay says, fell with its front part on the east shoulder and its “rear part on the slab,” and died there in a short time from the impact. Alvin Lucas, according to Clay and Lucas, was the only one, except Clay, along with the two mules. Lucas testified that he was about thirty feet behind the mules and was “walking on the east curb,” and that defendant Reis, was driving so near the east curb that the car “hit the trousers” on Lucas. Harry Clark, called as a witness for defendants, Smith and Clay, was at the scene in a few minutes after the accident and testified that he saw marks on the pavement which he took to be skid marks of a car, and also saw glass “scattered on the pavement;” and that the marks extended fifty-eight feet diagonally (northwest) from a point six feet back from where the mule was; that these marks extended “to the left hand side of the yellow mark which is the center of the high
It was contended by defendants, Smith and Clay, that they were not negligent in having the mules on the highway in the manner and under the circumstances as plaintiff‘s evidence tends to show. Plaintiff‘s evidence, for the consideration оf the demurrers, must be taken as true, Kitchen v. Schlueter Mfg. Company, 323 Mo. 1179, 20 S. W. (2d) 676, and if anything favorable to plaintiff‘s case appears in defendant‘s evidence, that too, under the rule, may be invoked in favor of plaintiff and against the demurrers. [Sing v. St. Louis-S. F. Ry. Co. (Mo.), 30 S. W. (2d) 37.] Under these well-known rules, we have the following as established facts in considering the demurrers as to defendants Smith and Clay. (1) It was dark, raining and foggy; (2) the paved roadway where the mules and defendant Clay were traveling, was forty feet in width, with four traffic lanes, each ten feet in width and was within five or six miles of a large city, and the time was about six-thirty P. M.; (3) the two inside lanes were dark in color and the two outside of light color; (4) defendant Clay and the mules were traveling north, the ridden mule being on the east lane of the dark colored pavement and the other mule on the east lane of the light colored pavement and attached with a rope to the ridden mule; (5) the color of the mules is not given, but it appears that the ridden mule was not white; and (6) Clay had no lantern or light and there was no lantern or light on either of the mules. Under these facts Smith and Clay say, as stated, that their requests for a directed verdict should have been given, and as supporting this contention, these authorities are relied on:
On the question in hand there is no wealth of authority in our own jurisdiction. Huddy says that “in the absence of statute or ordinance, it is not negligence to ride or drive animals, not hitched to a vehicle, along the highway after dark, without a light.” In support of this statement, Pollet v. Robinson Lumber Company (La. App.), 123 So. 155, supra, is cited. In that case, it was alleged that plaintiff was driving his car at a moderate rate of speed along the highway, and desiring to pass another car, he sounded his horn and pulled to the left; that as he attempted to “straighten out” on the road, he discovered immediately in front a team of mules, harnessed, but not hitched to a vehicle, “one of which mules was being ridden and driven by a negro on the left hand side of the road in the direction of Baton Rouge,” and that the mules collided with his car. It was held that the petition did not state a cause of action; that the defendant “was within his rights in driving his mules along the highway;” that no applicable law required that mules not hitched to a vehicle should be accompanied after dark by a light.
In 3 Blashfield, Cyc. of Automobile Law, page 15, the text says that “in the absence of a statute to the contrary, it is not negligence for a person driving cows at night to fail to carry lights.” In support is cited Meredith v. Kidd (La. App.), 147 So. 539, supra. In this case, plaintiffs sued to recover for the loss, among other items, of his mules, which were struck and killed in the nighttime by the car of defendant and driven by him on a paved highway. The mules were tied to the rear of a horse-drawn trailer traveling south. Defendant Kidd was going south in his car, and “just before the impact” Kidd was blinded by the lights of a car going north. Just as Kidd “passed the car with the bright lights,” the trailer and the mules “suddenly loomed uр” in his path and he swerved to the left, but struck the mules. The mules and trailer were in charge of plaintiff‘s agent to whom he had given a lantern to be lighted and attached to the rear of the trailer. The agent at first attached the lighted lantern to the rear of the trailer, but this “interfered with the mules,” and it was taken down and placed on the front end of the trailer, but swung lower than the bed of the trailer, so that it might be seen from the rear, but the trial court found that the lantern was not visible from the rear of the trailer. It was also found that both plaintiff and defendant were negligent, and recovery was denied on the theory that plaintiff‘s negligence was the proximate cause of the damage he sustained. The defendant was held to be negligent because of speed in excess of a statute. On appeal, it was held that the mules “were not hitched to or engaged in hauling a vehicle,” and that they “were in the same situation as if being led or driven in any other way, and that liability as to them depends
In Cook v. Tooke (La. App.), 135 So. 917, it appears that the plaintiff while driving on the highway in the nighttime, struck some cows and sustained damage to his car. He sued the owner of the cows, which had gotten out of the pasture and were unattended at the time. It was held that the owner was not at fault and plaintiff was denied recovery. In Bombard v. Newton (Vt.), 111 Atl. 510, plaintiff sought to recover for the loss of two cows. Plaintiff‘s agent was, in the nighttime, driving two of plaintiff‘s cows south on a straight improved highway “much used by automobiles.” The driver had no light and “did not have any halter or rope attached to the cows.” Defendant approached from the south in his car. The cows and their driver were on the right-hand side of the road, and defendant‘s car collided with the cows and killed them. It was found that the defendant was driving at an excessive rate of speed, but he sought to defeat recovery on one ground, among others, as we read, that plaintiff was guilty of contributory negligence as a matter of law, in driving the cows on the highway in the nighttime without any light. Of this defense it was ruled that “we cannot say as a matter of law” that it was necessary for the plaintiff to carry a light.
Fullenwider v. Brawner (Ky.), 6 S. W. (2d) 264, l. c. 266, was an action by a horseback rider to recover damages for personal injuries and for the loss of the horse, sustained by being struck by an automobile. Plaintiff Brawner prevailed below and on appeal defendants complained of the refusal to give an instruction which told the jury in substance that “it was the duty of plaintiff to keep reasonably to the right side of the road as he approached the automobile, and if he failed to do so, and by reason thereof was injured, the jury should find for the defendants.” In ruling this assignment the court observed that it raised a question “that has not been directly decided;” that there was no statute “defining the duties of a pedestrian or a person riding on horseback on the public highway,” and that absent a statute “such travelers are governed by the common law,” and then after stating that it is the duty of all persons to exercise ordinary care for their own safety, the court said: “It is the duty of a person riding a horse along the highway to exercise ordinary care for his own safety. It is a question for the jury whether such care was exercised under the particular circumstances of each case. In cases where there is no statute so providing, the court has no right to require a traveler on the highway at all times and under all conditions to remain on the right-hand side of the road. It is for the jury to determine under
Yore v. Transfer Company, 147 Mo. 679, 49 S. W. 855, dealing with the rules of the road at common law held (head note) that “it is not the law of this State that a teamster, driving a wagon along a street in which a street car line is operated, is required to use one side of a street to the exclusion of the other, or that he is guilty of negligence, because he was traveling on the north side of the street going eastwardly, when a collision between his team and a footman occurred, nor can any presumption of negligence arise from that fact alone.”
Roper v. Greenspon (Mo. App.), 192 S. W. 149, l. c. 155, Id., 272 Mo. 288, 198 S. W. 1107, L. R. A. 1918D, 126, was an action to recover for personal injuries received by plaintiff about nine-forty-five P. M., while driving an automobile on a street in St. Louis, caused by collision with steel beams extending over the rear of a wagon of defendants. Plaintiff pleaded an ordinance which, it was claimed, required a light or lantern so placed as to be visible from the front and rear of the wagon. Common-law negligence was also relied upon. Defendants claimed that they had complied with the ordinance insofar as it required lights. Plaintiff was driving east on Lawton and the wagon, headed north, was standing on the intersection of Lawton and Channing, with the front wheels “a few inches west of the east curb line of Channing Avenue and a few feet north of the north curb line of Lawton Avenue,” and the rear wheels were south “a little beyond the center of Lawton,” and the beams extended on south from the wagon eight or nine feet. The case went to the jury on “the theory that, even though defendants complied with the ordinance mentioned, they could nevertheless be found negligent in permitting the wagon and beams to remain in the street without giving any signal or warning to approaching vehicle driven” by plaintiff, and without displaying a light on the heavy I-beams. The Court of Appeals held that plaintiff saw the wagon when he was twenty feet away, and that since he could stop in seven feet, that the absence of a light, if shown, was not the cause of the injury complained of. The subject of common-law duty was also considered and on this the court said: “The only negligence, if any, attributable to defendants, aside from the breach of the ordinance, if any, must be found in the failure of the driver of the reach wagon to have a light on the beams themselves, if he did so fail, or in his failure to otherwise warn the drivers of approaching vehicles of the presence of the beams. Generally speaking, at common law, the driver of a wagon upon a highway at night is under no duty to carry a light to warn others of the presence of his vehicle or its load.” The Court of Appeals reversed the judgment in Roper v. Greenspon without remanding, but there was a dissent, and the cause was certified here.
Linstroth et ux. v. Peper (Mo. App.), 188 S. W. 1125, l. c. 1127, was to recover for the death of plaintiff‘s infant son who was struck and killed on a street in St. Louis, by an automobile owned by defendant and driven at the time by her agent. This cause was prior to the enactment of our statute,
Boyer v. North End Drayage Company (Mo. App.), 67 S. W. (2d) 769, l. c. 770, was to recover for personal injury caused by being struck by a motorcycle on a street in East St. Louis, Illinois. Plaintiff‘s evidence was that he was crossing at the intersection on an east and west street, and was going north; that the motorcycle was going east on the street which plaintiff was crossing; and that when plaintiff was near the north side of the street he was struck by the motorcycle. Plaintiff‘s claim was that the motorcycle was on the
Hannah v. Butts (Mo. App.), 14 S. W. (2d) 31, was to recоver for injuries sustained by an automobile, in the nighttime, striking from the rear, plaintiff‘s wagon. Plaintiff, on the right hand side, was going west on U. S. Highway No. 50 on the paved roadway. Defendant‘s automobile going forty or fifty miles per hour, struck the rear of the wagon. It was contended that, notwithstanding there was no statute requiring plaintiff to have a light on his wagon, that, nevertheless, he should have had one. It was held that such question was for the jury and that the plaintiff was not guilty of contributory negligence as a matter of law “because he did not have a light upon his wagon.”
In Myers v. Velasquez (C. C. A.), 16 Fed. (2d) 111, plaintiffs below sought to recover for personal injury and other items of loss, caused by an automobile running into the rear of a one-horse wagon in which plaintiffs were riding along the highway. Defendant contended that plaintiffs were guilty of contributory negligence because they did not drive on “a good road running parallel and near to the road on which the accident occurred and on which horse-drawn vehicles usually traveled, and whiсh few automobiles used, while the road on which the accident . . . happened was much traveled by automobiles.” It is stated that the principal error assigned was the action of the court in excluding the evidence as the parallel road, and the remarks of the court. It appears that the trial court “did no more than to say in the presence of the jury that the plaintiffs had the right to travel the main highway and were not required to seek another road.” It was ruled that the assignment was “wholly frivolous.”
In the cause at bar it is contended by plaintiff that defendants Clay and Smith should, under the circumstances, have had the mules on the shoulder of the road. We find no text or case to support such theory. Smith and Clay, in their briefs, call our attention to
We have a statute,
It is further contended by defendants, Smith and Clay, that even though the mannеr, under the conditions, in which the mules were on the highway, made a submissible case as to their negligence, yet plaintiff cannot recover as to them because, it is claimed, the failure of defendant Reis to have the automobile equipped with lights as required by law, was the sole proximate cause of plaintiff‘s injury.
The next assignment of Smith and Clay is on the submission of the case to the jury without instructions on the part of plaintiff as to what facts it was necessary to find in order to find for plaintiff. In plaintiff‘s brief it is stated that he should perhaps “criticise himself for not presenting instructions to the trial court upon the issues of liability in the case, thereby himself selecting the theory or theories of liability which he desired to have presented to the jury. But plaintiff contends that notwithstanding the fact that he did not submit instructions “selecting the theory or theories of liability which he desired to have presented,” that the instructions given at the request of the defendants selected “the theories of liability on which the case went to the jury.” Plaintiff says that “the two sets” of defendants in the instructions given at their request “submitted to the jury the questions of whether appellants Smith and Clay were liable to respondent under the 2d and 4th charges of negligence directed against them.” As appears, supra, the second and fourth charges of negligence against Smith and Clay were (2d) in riding the mules in such manner as to block the traveled portion of the highway when it was dark and raining, and (4th) in not riding the mules as close to the right-hand side of the highway as was practicable under the circumstances. The instructions given for the defendants and upon which plaintiff relies to escape the conse
Instruction 7 told the jury that in traveling along the road with the mule of Smith, defendant Clay was not required to so ride the mule or to otherwise proceed so that “the entire width of the pavement would be left unobstructed.” Also, the instruction directed that Clay was not “obliged to see that the highway was absolutely safe for the passagе of vehicles, regardless of the manner of their operation, but rather, said defendant Clay had the right to assume that automobiles driven along the highway would not be operated negligently and in disregard of the circumstances present and apparent there to the drivers of such automobiles. The extent of defendant Clay‘s duty, in this connection, was to exercise ordinary care for the safety of others using the highway for travel, that is, that degree of care which a reasonably prudent and careful person would exercise under the same or similar circumstances. Even if you find and believe from the evidence, therefore, that Cecil Clay and the mule he was riding were traveling on the paved portion of the highway and that said portion of the highway was thereby partially obstructed, yet if you also find and believe that he was exercising ordinary care, that is, that degree of care which a reasonably careful and prudent person would exеrcise under the same or similar circumstances, then plaintiff cannot recover against either defendant Cecil Clay or defendant Hugh R. Smith, and your verdict must be for said defendants.”
Plaintiff makes the further contention that if instructions 5 and
In view of our holding on the assignment of Smith and Clay based on the failure of plaintiff to submit instructions, it is not necessary to pass on other assignments of these defendants.
We now take up the assignments of defendants Reis-Moran Lumber Company and Reis. As above stated, these defendants make only two assignments, viz.: On the refusal of their separate requests for a directed verdict at the close of the case and on an alleged excessive verdict. We shall first consider the assignment of defendant Reis based on the refusal of his request for a directed verdict. As stated, four charges of negligence were made against de
We shall next consider the assignment of defendant Reis-Moran Lumber Company based on the refusal of its request for a directed verdict. The lumber company was in no manner interested in getting the airplane from the airport in Illinois, to which airport plaintiff and defendant Reis intendеd to go after Reis got supper at his home. The home of Reis was eleven miles from Mehlville, from which place plaintiff and Reis started. Reis, as heretofore stated, was in the employ of the lumber company, and the car was owned by the lumber company. It is contended by plaintiff that there was substantial evidence tending to show that the lumber company furnished the car to Reis, not only to use in the discharge of his duties, but to go to the place of his employment and return at the end of the day to his home. As to whether the lumber company furnished the car to Reis for the purpose, among others, of going from his home to his place of work and returning to his home, the
Defendants, Reis-Moran Lumber Company and Reis, as above
Following Hoelzel v. Chicago, R. I. & P. Ry. Co., 337 Mo. 61, 85 S. W. (2d) 126, the judgment as to all defendants should be reversed and the cause remanded with directions to the trial court to hold in abeyance the verdict as to both liability and amount of damages against defendants Reis-Moran Lumber Company and Reis, until the case is disposed of as to the liability of defendants Smith and Clay, then enter judgment for the amount of the verdict, held in abeyance, against all defendants finally held liable. It is so ordered. Ferguson and Hyde, CC., concur.
PER CURIAM:—The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.