Crowley v. Worthington
| Decision Date | 17 May 1934 |
| Docket Number | 32159 |
| Citation | 71 S.W.2d 744 |
| Parties | CROWLEY v. WORTHINGTON |
| Court | Missouri Supreme Court |
Brackmann & Versen, of St. Louis, for appellant.
Jacob M. & Arthur V. Lashly, of St. Louis, for respondent.
FITZSIMMONS, Commissioner.
Defendant appeals from an order of the circuit court of St. Louis county sustaining plaintiff's motion for a new trial. The damages demanded by plaintiff's petition fix our jurisdiction. The reason assigned by the trial court for granting a new trial to plaintiff was error in the giving of a certain instruction requested by defendant. We will state sufficient facts to present and to rule upon the error confessed by the trial court.
Plaintiff was riding as a guest in an automobile driven by her employer. The car was bound west on Chouteau avenue in the city of St. Louis. Defendant was driving his car southwardly on Boyle avenue. The two collided at the intersection of Chouteau and Boyle avenues. The car in which plaintiff was a guest was turned upside down and she was seriously injured. There was a conflict of testimony, usual in these collision cases, as to speed and as to which car reached the intersection first or whether they reached the intersection at approximately the same time. The trial court gave on behalf of plaintiff one main instruction and an instruction on the measure of damages, and on behalf of defendant six instructions. Instruction 3, given on behalf of defendant and assigned by the court as a reason for a new trial, is as follows: 'The court instructs the jury that if you find and believe from the evidence that the automobile in which plaintiff was riding and the automobile which the defendant was operating arrived at the intersection of Boyle and Chouteau Avenue at approximately the same time, or that the defendant arrived at said intersection at and prior to the time the automobile in which plaintiff was riding arrived thereat, then the defendant had the right of way over said intersection, and if you find that the driver of plaintiff's automobile failed to yield said right of way to the defendant, but proceeded across the same, and that his failure to so yield said right of way was the sole and only cause of the collision mentioned in the evidence, then your verdict should be in favor of the defendant.'
This instruction is based on subdivision (l) of section 7777, R. S. 1929, Mo. St. Ann. § 7777 (l), p. 5213. That subdivision is as follows:
Under the statute defendant had the right of way if he reached the intersection at approximately the same time as the car in which plaintiff was a guest.
The jury returned a verdict for the defendant. The first order of the trial court overruled plaintiff's motion for a new trial. But, during the same term, the court, upon its own motion, set aside the order overruling the motion, reinstated the motion, and...
To continue reading
Request your trial