Krelitz v. Calcaterra

• Decision Date: 20 December 1930
• Docket Number: 28847
• Citation: 33 S.W.2d 909
• Parties: KRELITZ v. CALCATERRA et al
• Court: Missouri Supreme Court

33 S.W.2d 909

KRELITZ v. CALCATERRA et al

No. 28847

Supreme Court of Missouri, Second Division

December 20, 1930

Motion for Rehearing Overruled December 31, 1930.

R. T Brownrigg and Mason, Goodman & Flynn, all of St. Louis, for appellant.

S. P McChesney and W. B. Dearing, both of St. Louis, for respondents.

OPINION

COOLEY, C.

Appeal by plaintiff from a judgment of the circuit court of the city of St. Louis in favor of defendant Sloofman. With some modifications we adopt appellant's statement of the facts.

The suit was for $ 20,000 for personal injuries received by plaintiff in an automobile collision which occurred about 10:30 p. m., October 23, 1925, at the intersection of Manchester and McCausland avenues in St. Louis. Manchester avenue runs east and west; McCausland north and south crossing Manchester. At the time of his injury, plaintiff was riding in a Ford sedan as a guest of defendant Sloofman, who owned and was driving the sedan. Sloofman had been going east in Manchester avenue and had turned north in the intersection, intending to continue northward in McCausland avenue, when his sedan was struck by an automobile driven by defendant Calcaterra going west in Manchester and near the north curb thereof. At the moment of collision the Sloofman car was going north and the front end of it was about even with the north curb of Manchester avenue.

Sloofman, as he approached the intersection, slowed down to a speed of between 10 and 15 miles an hour and began the turn to the north with the right side of his car about 2 feet from the south side of Manchester avenue, and then continued across Manchester at the same rate of speed until struck. Manchester avenue at that point is 411/2 feet wide east of McCausland and 43 feet wide west of McCausland avenue. Before Sloofman started to make the turn, he saw the Calcaterra automobile coming on Manchester from the east. It appeared to be about two or three hundred feet away when he began the turn. He was unable to estimate its speed. Calcaterra's automobile struck the Sloofman automobile and overturned it, inflicting serious injuries upon the plaintiff. The case was submitted to the jury both against Calcaterra and Sloofman. The jury found a verdict of $ 3,000 against the defendant Calcaterra and a verdict against the plaintiff in favor of the defendant Sloofman.

Calcaterra has not appealed. This appeal is by the plaintiff from the judgment against him and in favor of defendant Sloofman.

Appellant assigns error in the giving of two instructions, Nos. 11 and 12 on behalf of respondent (Sloofman) which appellant claims are not correct and are in conflict with his own instructions Nos. 4 and 5.

Appellant's instruction No. 4, in substance. stated that it is the duty of an automobile driver intending to turn to the left to bring the left side of his vehicle as near as practicable to the center line of the highway along which he is proceeding before turning, and that if Sloofman failed to do so and under took to turn north into McCausland avenue from the extreme right or south side of Manchester, he was guilty of negligence, and if the jury so found and further found that the collision was due to such negligence or that such negligence was one of the direct causes of the collision, the verdict should be for plaintiff against Sloofman.

Plaintiff's instruction No. 5 is as follows:

'The court instructs you that, if you find and believe from the evidence that the defendant Sloofman, at the time and place aforesaid, was driving his automobile, in which plaintiff was riding, eastwardly on Manchester avenue and, while proceeding at a rate of speed of about fifteen miles an hour, suddenly, negligently and without slowing down, drove his said automobile toward the north and toward McCausland avenue and directly in front of an oncoming automobile driven by the defendant Calcaterra and in such close proximity to Calcaterra's automobile that the defendant Sloofman knew or in the exercise of ordinary care should have known that there would be danger of a collision between said machines in time by the exercise of ordinary care to have avoided said collision, then the defendant Sloofman was guilty of negligence, and if you find and believe from the evidence that the collision and plaintiff's injuries, if any, were directly due to said negligence or that said negligence was one of the direct causes of plaintiff's injury, then your verdict should be in favor of the plaintiff and against the defendant Sloofman.'

Defendant Sloofman's instructions No. 11 and No. 12 were as follows:

'Instruction XI. The Court instructs the jury that if you find and believe from the evidence that when the defendant Sloofman reached the intersection in question and before he started to turn into McCausland avenue, he saw the automobile of the codefendant Calcaterra approaching at a distance of two or three hundred feet away, and if you further find and believe from the evidence that seeing the automobile of the codefendant at such a distance (if you find it was at such a distance), and that a careful and prudent automobile driver, in the exercise of due care, under like or similar circumstances, would have turned as did the defendant Sloofman, then and in that event you will not find the defendant Sloofman guilty of negligence in making said turn, and your verdict will be in favor of said defendant Sloofman.

'Instruction XII. The Court instructs the jury that, although you may find and believe from the evidence that the plaintiff was an occupant of the defendant Sloofman's automobile on the night mentioned in the evidence, yet you are further instructed that the defendant Sloofman was not an insurer of the plaintiff's safety while he was riding in his said automobile, but did owe him the duty to exercise due care not to injure him, and in this connection you are further instructed that if you find and believe from the evidence that under the circumstances that prevailed at the time and place detailed in the evidence the defendant Sloofman did exercise due care in making said left-hand turn into McCausland avenue, then you are further instructed that if you find and believe from the evidence that the plaintiff's injuries, if any, were caused solely by the negligence of the codefendant Calcaterra in running into and colliding with the defendant Sloofman's automobile, and not by reason of any negligence on the part of the defendant Sloofman, then you will not find a verdict against the defendant Sloofman, but your verdict will be in favor of the defendant Sloofman.'

While as above stated, appellant assigns error in the giving of both instructions No. 11 and No. 12, his real complaint appears to be directed against No. 11. Point I of his 'points and...