Monroe v. Sterling

The accident happened at 7:30 P.M. It was dark. Automobiles had lights on. Plaintiff and his uncle were walking in a southerly direction, and on the westerly side of the road (either on or off the tarvia), which was about twenty-two and one half feet wide in that locality. Defendant was also operating his car in a southerly direction, and in the rear of plaintiff and his uncle. He had his dimmers on. A car was coming in the opposite direction, with bright lights on, at least one hundred feet away from the point of contact. There was a sand shoulder west of the road, averaging from three to six feet in width. Both men were close to one another, at times rubbing elbows and shoulders, and plaintiff was to the east of his uncle. Plaintiff's claim is that he was on the shoulder within three or four inches of the westerly edge of the road when he was struck. Plaintiff does not know how the accident happened. His uncle, however, testified that plaintiff was struck by the defendant's car and fell in front of him. This uncle testifies that defendant's car was on the tarvia, and never left it after the *Page 13 accident. There is no evidence in the case from which it can be found defendant's car was off the tarvia before the accident. The car door hinges extend out from the side of the car one and five eighths to two inches. The upper hinge, the one which came in contact with the plaintiff, is approximately four feet eight and six eighths inches from the ground. The running board extends out four and three fourths inches beyond the hinges, the running board itself being ten inches wide, and is one foot two and three fourths inches from the ground. The car overall is five feet eight inches wide. If plaintiff's version of the accident is true, it is impossible to see how plaintiff could have been struck in the back of the head, without being hit on any other part of his body by any other part of the car except the hinge of the door on the right-hand side of the car (a fact which must be conceded). The accident must have happened as defendant's grandfather says it did. The latter was riding with the defendant, and to his right in the front seat. His testimony is to the effect that plaintiff at least (if not both men), was on the tarvia; that as defendant's car came within ten feet of these two men, and swerved sharply to the left, plaintiff's hands went up, and he fell backward and downward, thus coming in contact with the top hinge of the right-hand door of the car. Defendant's car was within two or three feet east of the westerly edge of the tarvia, just before swerving to the left. If this is the true version of the accident, the conclusion is inevitable that there is nothing in the case indicating causal negligence on the defendant's part. Nothing is suggested or advanced in written or oral argument that could charge the defendant with causal fault in the situation disclosed by the evidence. Judgment for defendant. ALLEN, C. J., was absent: the others concurred. ON REHEARING. After the foregoing opinion was filed, plaintiff moved for a rehearing. The motion was granted.