Althage v. Motorbus Company

• Decision Date: 03 July 1928
• Docket Number: No. 26771.,26771.
• Citation: 8 S.W.2d 924
• Parties: HENRY J. ALTHAGE, Administrator of Estate of ANNA M. WEIL, v. PEOPLE'S MOTORBUS COMPANY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

8 S.W.2d 924

HENRY J. ALTHAGE, Administrator of Estate of ANNA M. WEIL, v. PEOPLE'S MOTORBUS COMPANY OF ST. LOUIS, Appellant.

No. 26771.

Supreme Court of Missouri, Division One.

July 3, 1928.

Appeal from Circuit Court of St. Louis County. — Hon. G.A. Wurdeman, Judge.

AFFIRMED AND REMANDED.

Carter, Jones & Turney for appellant.

(1) The verdict and judgment for defendant was for the right party. (2) Plaintiff was not entitled to recover from defendant, and defendant's instruction in the nature of a demurrer to the evidence offered at the close of the whole case should have been sustained, and, therefore, the motion for new trial should not have been sustained on the ground of error, if any, in giving Instruction 13. (3) It was not error to give Instruction 13 offered by defendant.

Hay & Flanagan for respondent.

(1) The court did not err in refusing to give the instruction, in the nature of a demurrer to the evidence, offered by defendant at the close of the whole case. (2) The court properly granted plaintiff a new trial because of the reading and giving to the jury of Instruction 13 for defendant. Seithel v. Dairy Co., 300 S.W. 280; Kamar v. Foundry Co., 300 S.W. 1028; Latham v. Hosch, 207 Mo. App. 381; American Auto Ins. Co. v. United Rys. Co., 200 Mo. App. 317. (3) It was error to give Instruction 15. Glaser v. Rothschild, 221 Mo. 203; Zini v. Terminal Ry., 235 S.W. 86. (4) It was error to give Instruction 5. Burke v. Pappas, 293 S.W. 142; Dutcher v. Railroad, 241 Mo. 165; McGinnis v. Mo. Pac. Railroad, 268 Mo. 667; Ellis v. St. Ry., 234 Mo. 657; Glaser v. Rothschild, 221 Mo. 203; Zini v. Terminal Ry., 235 S.W. 86.

GANTT, J.

On November 26, 1923, about 9:45 P.M., Anna M. Weil, 85 years old and wearing a black dress and shawl, while on her way from a picture show, located on the east side of Grand Avenue and two blocks north of the intersection of Grand and Liermann avenues, in St. Louis, was struck and killed by defendant's motorbus at said intersection. Grand runs north and south, and Liermann runs west from Grand. As she walked south on the east side of Grand she was passed by Louis J. Risch, Jr., about two blocks north of the place of collision. No one else seems to have noticed her except Robert Bloodwater, the bus driver, who testified he first saw her about six feet away, walking rapidly toward the bus just before it struck her. It is presumed she crossed the intersection on the east side of Grand to the southeast corner of the intersection and turned west, crossing the street toward the west side of Grand on the way to the home of her daughter. By its answer defendant admits she walked west from the southeast corner of the intersection to the point of collision. The bus was moving south on the west side of Grand and crossed the intersection to the point of collision at the rate of eight miles per hour. The inside of the bus was well lighted, and the headlights, which could be seen fifty feet away, threw a light for thirty feet directly in front of the bus. The intersection was fairly well lighted, so that one could see across the street.

Bloodwater, the bus driver, testified as follows:

"I was driving south on South Grand and after I crossed Liermann — crossed over Liermann — I see a dark object in the street; at that moment I did not know whether it was an animal or a human being; that was about six feet away from my left fender, and just that moment I hollered and swung the bus to the right and I struck the lady or she struck me on the left fender, and I stopped the bus right there and jumped out of the cab, and it was so dark there on the ground I did not know whether she was in front of the wheel or in back of the wheel, and the conductor and myself picked her up and we took her into the drug store;" that immediately on seeing her he applied the brakes with his right hand, swung the car to the right with his left hand, hollered and stopped within about six feet; that he did not sound the horn at the time of the collision, but did so as he approached the street.

There was evidence, pro and con, with reference to sounding the horn as the bus approached Liermann Avenue. Other facts will be noted.

At the close of all the evidence defendant offered an instruction in the nature of a demurrer, which was overruled.

The petition is for $10,000 damages, and contains eight assignments of negligence, six of which were withdrawn by instructions, and the cause was submitted on the following assignments:

"3. In negligently failing to exercise ordinary care when approaching the intersection aforesaid to sound a signal in such a way as to give warning to deceased of the approach of said motorbus, in violation of Section 1277 as aforesaid.

"8. That deceased, as said motorbus was approaching said Liermann Avenue, was in a position of imminent peril, to which peril deceased was oblivious and from which she was unable to extricate herself, and that the defendants, their agents and servants in charge of said motorbus, saw or by the exercise of ordinary care could have seen deceased in a position of peril and oblivious thereto, and unable to extricate herself therefrom, in time thereafter by the exercise of ordinary care and with the means and appliances at hand and with safety to said motorbus and persons riding thereon to have stopped said motorbus or to have reduced its speed, or to have changed its course, or to have sounded a warning and thereby have avoided striking the deceased, but negligently failed so to do."

The answer was a general denial with a plea of contributory negligence. The reply was a general denial. Verdict was for defendant, and the court granted a new trial on the ground that it erred in giving defendant's Instruction 13. Defendant appealed from the order granting a new trial.

I. Defendant contends the court should have given its instruction in the nature of a demurrer, for the reasons (a) that plaintiff was guilty of contributory negligence as Demurrer a matter of law and was not entitled to recover to Evidence. under the assignment charging defendant with negligence in failing to sound the horn on approaching Liermann Avenue: (b) that plaintiff failed to make a case under the humanitarian doctrine, for the reason the bus driver could not see deceased in time to have prevented the collision.

(a) There is no direct evidence as to the course and speed of deceased as she walked from the point where she was passed by Risch until she was seen by the bus driver just before the collision. Under the facts and circumstances it may be inferred that after he passed her she continued to walk on the south side Presumption of Grand and over the intersection to the southeast of Ordinary. corner thereof; that she then turned west and proceeded to cross the intersection at or near the south line of Liermann Avenue. Considering her age,...