O'Donnell v. O'Neill , 130 Mo. App. 360 ( 1908 )

GOODE, J.

Appellant-filed this action to recover damages for a personal injury alleged to have been due to respondent’s negligence in operating an automobile. The accident occurred October 18, 1902, in the forenoon, and on West Pine Boulevard in the city of St. Louis, at a point between Spring and Vandeventer avenues. It is alleged the automobile emitted loud hissing and puffing sounds caused by using gasoline in the propelling of the machine, and by the exhaust of gases in the engine propelling it; that the automobile was large, bright in color and different from the other vehicles used in the streets, and the noise it emitted and its appearance were likely to frighten horses, especially when the machine was driven toward them without warning.- It is further stated that while appellant was driving in his. buggy along Pine street, respondent’s automobile was standing on the south side of said street near the curb; that as appellant was passing the machine, respondent who was in charge thereof, while he saw, or by the exercise of ordinary care could have seen appellant driving in close proximity, suddenly and carelessly ran the machine near appellant’s horse and within two feet of the same; and while the machine was being thus run toward appellant’s horse, respondent carelessly and negligently permitted loud, violent and hissing sounds to escape from it, frightening appellant’s horse, which ran away, causing the buggy to strike the sidewalk and throw plaintiff to the ground. The answer is a general denial. A line of carriages was drawn np on either side of the street in front of a residence where a funeral was in progress. Respondent Avas attending the funeral and had gone there in his automobile. The machine was on the south side of Pine street against the curb and to the west of the line of carriages. Between the row of carriages on the north and south sides of the street Avas a passageway about ten feet Avide, through which yehicles could go. Appellant was driving through said defile behind a coal wagon and eight or ten feet to the rear. He was going westward. When the coal wagon had passed out of the defile and appellant’s buggy was in the act of passing out, respondent started in a northerly or northeasterly direction across the street in his machine, thus bringing it in front of and not far from the head of appellant’s horse. The noise and sight of the machine frightened the animal, which reared and almost immediately ran away, throwing appellant out of the buggy. As soon as the horse gave signs of fright, respondent backed his machine and stopped. According to the testimony of plaintiff and all the Avitnesses Avho spoke about the matter, the noise of the automobile Avas not unusual but like that emitted by any gasoline automobile. At the conclusion of the testimony for appellant the court gave an instruction that under the Iuav and evidence the verdict must be for respondent; whereupon appellant took a nonsuit with leave to move to set the same aside; Avhich motion having been made and overruled and judgment entered against appellant, the.present appeal was prosecuted.

We thought on the argument this appeal must fail and a reading of the record and the cases in point has confirmed this opinion. The decisions cited for appellant, and others we have looked into which support a finding of negligence in the management of an automobile or engine, whereby some one was injured, all contain and turn on tbe fact that tbe person in charge of tbe machine, aftqr be saw tbe danger to which another was exposed from it, might have averted the accident by stopping or doing something else; or else on the fact that the machine was emitting unusual noises. The cases most in point are, of course, those in which horses, frightened by a machine, injured persons in vehicles they were drawing. In these decisions it either appeared the evidence would support a finding that after the person in charge of the machine, ought to have discerned the uneasiness of the horse, he omitted to stop the machine, or that there was something- out of the ordinary about the noisé of the machine. [McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972; Feeny v. Railroad, 123 Mo. App. 420, 99 S. W. 477; Phelan v. Railroad, 115 Mo. App. 423, 91 S. W. 440; Brown v. Railroad, 89 Mo. App. 192; Topeka Water Co. v. Whiting, 58 Kas. 639; Ward v. Meredith, 220 Ill. 66; Chrisy v. Elliott, 216 Ill. 31; Strand v. Automobile Co. (Ia.), 113 N. W. 488; Shinkle v. McCullough, 116 Ky. 960.] And see, too, annotation to Christy v. Elliott, 11 R. A. (N. S.) 215. Most of those cases deal with automobile accidents, and the others involve facts governed by the same principles of law. The uniform testimony in the present case proves respondent reversed his automobile, ran back toward the curbing and stopped as soon as appellant’s horse showed fright. Appellant himself testified the noise was not different from that of other automobiles. With these two facts established, the case is discriminated from all those in which the finding of negligence was supported. The question then comes down to .this: might a jury, co'nsistently with the general rules of the law of negligence, find respondent was negligent in running across the passageway between the carriages, when he could see appellant’s horse was about to emerge from said passageway? When appellant first noticed the automobile, it was, he said, six or seven feet south, slightly west oí Ms horse and coming across the street, and Avhen it stopped it was immediately in front of the horse. The impression made is that respondent ran the automobile from the south curb to the middle of the street in order to turn around, and in so doing brought it in front of the mouth of the defile between the carriages, as appellant was in the act of passing out of the defile. It is argued that respondent should haye anticipated the automobile might frighten the horsé in crossing the pathway, and was negligent in not waiting to start the machine across the street until appellant had driven past. In support of this argument considerable stress is laid on the rarity of automobiles in St. Louis at the time of the accident (five or six years ago) as compared with the present time. What ratio the automobiles then in use bears to the number in use now, we do not know; but they were common in St. Louis then, and we attach little importance to this point. Our opinion is that merely running the automobile into the street while appellant’s horse and other horses were passing by, did not bespeak negligence and the inference of negligence from that fact alone would be unfair. Appellant and his horse and buggy and respondent and his machine, enjoyed equal rights in the use of the street and each was bound to observe reasonable care for the other’s safety. What would fulfill the reasonable care exacted by the law, is to be determined from the extent of danger incident to the use of the respective vehicles. • [Cases supra.] Automobiles, are constantly driven along streets past horses without frightening them, and if the appearance and movement of a particular automobile and the noise incident to its operation are in no way unusual, it is not, per se, a wrongful act to operate it in proximity'to a horse so long as the horse exhibits no fright. Therefore respondent was within his rights in running his machine in the street until he observed, or ought, in common prudence, to have observed appellant’s horse was alarmed. As soon as the horse showed alarm, respondent backed away from it and stopped, thereby doing what he could to allay the fright of the horse and prevent a casualty.

We find no evidence of negligence in the case and affirm the judgment of the lower court.

All concur;