State v. Renfro
Decision Date | 11 January 1926 |
Docket Number | 26481 |
Citation | 279 S.W. 702 |
Parties | STATE v. RENFRO |
Court | Missouri Supreme Court |
Robert W. Otto, Atty. Gen., and W. F. Frank, Asst. Atty. Gen., for the State.
Statement
On November 28, 1923, an indictment was found by the grand jury of the city of St. Louis, Mo., which, without caption, reads as follows:
'Assistant Circuit Attorney.
'A true bill.
'W. K. Kavanaugh, Foreman.'
On January 14, 1924, defendant appeared in court, waived the reading of above indictment, and entered a plea of not guilty. He was tried upon the following day before a jury, who returned into court a verdict reading as follows:
Thereafter, on the same day, defendant filed a motion for a new trial, and on January 18, 1924, filed an amended motion for a new trial. On the date last mentioned, both motions for a new trial were overruled. On February 23, 1924, he filed a motion in arrest of judgment, which was overruled. Thereafter, on March 28, 1924, allocution was granted appellant, judgment rendered, and sentence pronounced in conformity with the verdict aforesaid. On the date last mentioned, an appeal was granted defendant to this court.
The issues and facts presented in the record are fairly and correctly stated by counsel for respondent as follows:
The facts upon which the indictment in this case is based were the negligent operation of an automobile truck on the public street of the city of St. Louis which resulted in the death of one James Killoran. Stated in small compass, the state's evidence shows that a number of workmen were repairing paving between the tracks of the street railway on Cass avenue. As the bricks were removed from between the tracks, they were piled in the street about 2 or 21/2 feet from the rail of the street railway track and about 12 feet from the curb line of the street. This 12-foot space was used by automobiles and vehicles in passing along the street. There were no brick or other obstructions in the street in this 12-foot space. Automobiles and vehicles passed and repassed along this part of the street without interference both before and after the accident. Deceased was seated on a pile of brick about 21/2 feet from the rail of the track and about 12 feet from the curb line of the street and was engaged in the work of cleaning brick. A red flag was placed at the east end of the brick pile where it could be seen. Appellant approached from the east, driving an automobile at the rate of 25 miles per hour, and did not slacken the speed of his automobile as it entered the 12-foot space between the curb line of the street and the brick piled along the rails of the track. A companion was seated on the truck with him, and at the time they were engaged in conversation and were looking toward the rear of the automobile. As the automobile traveled westward on this 12-foot space between the bricks and the curb, the automobile struck a telephone post, then ran upon the pile of brick where deceased was sitting, and struck and killed him. At this time deceased was seated on the pile of brick with his back toward the automobile truck and engaged in cleaning brick. The appellant testified that as he approached the place where the paving was being repaired, he saw that workmen were engaged in repairing the street and saw a man sitting on a brick pile; that as he entered the 12-foot space between the brick piled along the track and the curb line of the street, he reduced the speed of his truck to 3 miles per hour. He further testified that bricks were scattered promiscuously over the street on this 12-foot passway; that the wheels of his truck struck a brick and caused the truck to strike the telephone pole; that he started to swing back into first speed and ran up on the brick pile; that deceased started to get up, slipped, and fell down, and the car caught him. The evidence further shows that the telephone pole was about 100 feet from the west end of the repair work on the street and about 55 feet from the place where deceased was sitting at the time he was struck and killed.
This evidence clearly presents an issue of fact for the jury. The state's evidence clearly shows that appellant had a clear passway 12 feet wide, and that appellant by exercising any degree of care whatever could have passed along the place in question without accident or injury to any one.
While appellant maintains that the passway was obstructed with loose brick which caused the accident, the facts are that if appellant had been going at the rate of three miles per hour and giving any attention whatever to the surroundings, this accident would not have occurred, even though loose bricks were in the street. The disputed facts presented an issue for the jury to decide and are not for this court to determine.
Opinion.I. The sufficiency of...
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