— This is an action to recover damages on account of the alleged negligence of the defendant.
It appears from the evidence that on the 31st day of August, 1911, that the Centralia Fair Association was holding a fair at Centralia, Missouri; that the plaintiff was engaged in conveying passengers to and from the grounds of said association, where said fair was being held, in a carriage drawn by two horses; and that the defendant was engaged in the same business, using for the purpose an automobile. While coming from opposite directions, the two vehicles came in collision, which resulted in the crippling x>f one of plaintiff’s horses so severely that it had to be killed, and almost demolishing the harness it had on.
At the point where the collision occurred the street was fifty feet wide and almost level, with the exception of a slight elevation in the center and with two beaten tracks on either side of the center, eight feet apart. The street ran north and south, and the plaintiff’s vehicle was going north in or near the center of the street. The plaintiff’s evidence tends to show that if
The defendant had no signal attached to his vehicle, but had a mouth whistle. None of plaintiff’s witnesses heard defendant give any kind of signal. The plaintiff’s driver testified that he saw defendant’s automobile coming about a block away.
One witness testified that the market value of the horse was $200. Plaintiff himself testified as to its good qualities as a livery horse, and that he would pay $200 for one equally as good to supply its place. The value of the harness was also shown.
The defendant’s evidence tends to show that during several days prior to the date of the accident while the fair was in progress, the parties, in making their trips to and from the fair grounds, confined themselves to a beaten track on each side of the center elevation in the road, but on the occasion in question plaintiff was using the center, or nearly so, while defendant
At the close of the evidence defendant offered a demurrer to plaintiff’s case, which the court overruled.
The cause was instituted before a justice of the peace and appealed to the circuit court. The defendant filed no statement of his defense.
The theory upon which the case was tried is embodied in instruction No. 1 given by the court at the instance of plaintiff. Said instruction is as follows: “The court instructs the jury, that all vehicles, while in use, on streets and highways, have a right to use the center of such streets and highways, and the law imposes no duty on the owner or operator of vehicles on streets or highways to turn from the center of same, unless it becomes necessary to allow vehicles moving in the opposite direction to pass them, in which case the law requires such vehicles to turn to the right of the center of the street or highway; and if you find and believe from the evidence in this case, that the team and vehicle of plaintiff was, at the time of the injury, driving upon or along the center of the street or highway and that the automobile of the defendant was traveling a course on said street or highway as it approached plaintiff’s team, which would allow it to pass said team without injury to either; then the driver of said team was not required to turn from the center of said street, but on the contrary had a right to proceed along the center of said street or highway; and if you further find and believe from the evidence that defendant, when about to pass plaintiff’s team and vehicle, suddenly turned his automobile to the left and toward plaintiff’s team and1 surrey, and toward the
The verdict and judgment were for plaintiff in the sum of $195, from which defendant appealed.
The principal contention of defendant is that under the evidence and the law, the plaintiff was not entitled to recover, and this contention is based upon several grounds.' First, that plaintiff’s vehicle was wrongfully and illegally being drawn along or near the center of the street.
Section 105401, R. S. 1909', governs the question. It reads as follows: “Whenever any persons traveling with any carriage, wagon or other vehicle shall meet on any turnpike road or public highway in this state, the persons so meeting shall seasonably turn their carriage, wagon or other vehicle to the right of the center of the road, so as to permit each carriage, wagon, or other vehicle to pass without interfering or interrupting, under penalty of five dollars for every neglect or offense, to be recovered by the party injured. Nothing in this section shall be so construed as to prevent a heavily laden wagon, when it meets an empty wagon or vehicle, from retaining the center of the right of way or track.”
The statute requires such person so using the highway to turn to the right on meeting another vehicle going in an opposite direction. He is not permitted to pursue his course because in his judgment there is sufficient room for the other to pass without coming in conflict with his own vehicle. The object of the statute is to prevent errors of judgment in that respect and a monopoly of the center of the highway by persons disposed to use it for their own advantage
If, as contended, the collision occurred solely by reason of the defendant turning his vehicle suddenly into the center of the road, then it is no defense to the defendant to say that plaintiff has no cause of action for the injury because he was occupying the center of the road. The wrongful act of the plaintiff in that respect would not excuse the wrongful act of the defendant in failing to exercise proper care to avoid the collision. One wrong does not justify another wrong. The law is repugnant to the doctrine of retaliation.
The objection that the value of the horse was not shown by competent evidence is not well taken.
The plaintiff’s instruction on the measure of damages told the jury that they might award plaintiff “such damage as they might find from the evidence he has sustained by reason of the injury.” The instruction is criticized on the ground that as the evidence showed that the horse had a particular value
And evidence that a horse is a good livery animal is not evidence of special value any more than to say, he is gentle, or possessed of any other good quality. The instruction is specific enough. If it was lacking in that respect, it was the duty of the defendant to have asked the court to make it more definite. That is now the general rule.
We think the error pointed out was misleading, and, as it put a wrong construction upon the statute on a subject of much importance, the cause is reversed and remanded.