Heartsell v. Billows

ELLISON, P. J. -Plaintiff’s action is for damages alleged to have resulted to him by reason of defendant running an automobile onto him in one of the streets of the town of DeWitt. The judgment in the trial court was for the plaintiff in the sum of fifty dollars. The sole error alleged is the refusal of the trial court to sustain defendant’s demurrer to the evidence on the ground that it was not sufficient to authorize the jury to return a verdict for plaintiff. The case is bottomed on sections 8519 and 8523, Revised Statutes 1909, wherein it is provided that in any part of towns and villages automobiles shall not be driven at a greater rate of speed than ten miles per hour; and that in turning a corner of intersecting roads or streets where the view is obstructed the speed shall not exceed a rate of six miles an hour. There was evidence tending to show that plaintiff was standing in Main street talking with an acquaintance, when defendant, driving an automobile, turned the cornier of Fourth and Main streets where an embankment obstructs the view, goihg at a rate of speed [423] of more than sis miles per honr. This testimony further tended to show that the speed continued into Main street of more than ten miles per hour, one or more stating it was fifteen or twenty miles. Plaintiff was standing about forty-five feet from the corner at Fourth street and defendant could have seen him that distance. No horn was sounded. Plaintiff on hearing some one call, looked ,and saw the approach of the machine. He started to get out of the way, when after taking a step or two, he saw the machine was coming upon him and started the other way, but defendant swerved the machine and struck him. As the case stands we need not undertake to weigh the evidence nor to make distinctions between that for plaintiff and for defendant. It seems clear that considering the tendency of the evidence in plaintiff’s behalf and all legitimate inferences to be drawn therefrom, a case was made for the jury. The jury was authorized to find that defendant had violated the statute in running his machine around the corner and onto Main street and that he was guilty of negligence which resulted in running onto plaintiff. [Fink v. Ry. Co., 161 Mo. App. 314; Hodges v. Chambers, 171 Mo. App. 563.] We do not think the evidence showed plaintiff to be guilty of contributory negligence as a matter of law. It is quite true that he might have avoided the machine by stepping in a different direction, and that he erred in judgment when he altered his course of escape. But he was in peril through the negligence of defendant and that his effort to avoid being struck was a mistaken one should not condemn him as a matter of law. [McFerre v. Gardner, 121 Mo. App. 1; Hodges v. Chambers, supra.] We are without authority to disturb the verdict and hence affirm the judgment. All concur.