Bach v. Ludwig

Decision Date02 November 1937
Docket NumberNo. 24058.,24058.
Citation109 S.W.2d 724
PartiesBACH v. LUDWIG et al.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be published in State Reports."

Action by Hannah Bach against John Ludwig and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

John C. Tobin, of St. Louis, for appellant John Ludwig.

Fred H. Blades and Moser, Marsalek & Dearing, all of St. Louis, for appellant Charles Kram.

A. I. Graff and William R. Schneider, both of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries alleged to have been sustained by respondent as the result of a collision between two automobiles in one of which she was riding as a passenger. A trial before the court and a jury resulted in a verdict and judgment for respondent and against both appellants in the sum of $5,000. The trial court overruled the appellants' separate motions for a new trial, and they appealed. On oral motion of appellants, respondent consenting, the appeals have been consolidated in this court.

Respondent will be referred to herein as plaintiff, and appellants as defendants.

In her amended petition, upon which the case was tried, plaintiff alleged that she was riding in an automobile owned by defendant Kram on a public highway in St. Charles county, Mo., and, as said automobile approached the Dardenne Creek bridge on said road, there was coming in the opposite direction toward said bridge an automobile owned and being driven by defendant Ludwig; that both defendants drove and operated their automobiles at said time and place in such a careless and negligent manner that the two automobiles collided on said bridge, thereby causing plaintiff to be thrown out of her seat in the automobile in which she was riding, whereby she sustained serious and permanent injuries.

Plaintiff alleged that the collision and her injuries which resulted therefrom were due to negligence on the part of each of the defendants in failing to operate their said automobiles in a careful and prudent manner and at a rate of speed so as not to endanger the life and limb of any person, and particularly plaintiff, in that they drove their automobiles at a rate of speed in excess of 25 miles per hour, to wit, approximately 40 miles an hour, which was excessive and not reasonably safe, considering the traffic and the width of the road and bridge on which the collision occurred; that the defendants negligently failed to drive as near to their respective right-hand sides of the road as practicable; that they negligently failed to keep a careful lookout for each other's vehicles on said highway; that they negligently failed to sound any horn, signal, or warning of each other's approach to the point of the collision. Plaintiff further alleged in her petition a violation by each defendant of the humanitarian doctrine, in that defendants negligently failed to stop their respective automobiles, swerve or divert the course of same, or sound a warning after they saw, or could have seen, plaintiff oblivious of and in a position of imminent peril of being injured.

Each defendant filed an answer containing a general denial of the allegations of the amended petition.

It appears that plaintiff cannot speak English and is deaf. Her testimony at the trial was given through Ida Bach, her daughter, who acted as interpreter. It is obvious from the record that counsel for all parties, as well as the court, had great difficulty in making her understand the questions which were asked. We glean from her testimony that she was about 54 or 55 years of age at the time of the trial. She remembered that she was in an automobile accident, but could not remember what year it occurred nor where. She testified that she was married, but did not remember when she had last seen her husband; that she was living with two of her daughters.

On cross-examination, plaintiff admitted that she had been a patient at the City Hospital and at the Jewish Hospital for various ailments on occasions prior to the time she was taken to a hospital in St. Charles following the collision involved herein. Defendant Ludwig introduced in evidence hospital records from which it appears that plaintiff had been a patient in the Jewish Hospital and the City Hospital of St. Louis at various times from 1917 to and including September, 1932, suffering at one time or another from one or more of the following ailments: Varicose veins, enlargement of the heart, myopic eyes, pains in the head, shoulders, back and legs. It also appears that on two different occasions plaster casts had been applied to plaintiff's back for treatment of an arthritic condition thereof. It also appears from the hospital records that plaintiff has been deaf since childhood.

The evidence shows that the collision occurred at about 8:30 p. m. on Sunday, June 25, 1933, on a culvert, also referred to in the evidence as a bridge, spanning a ditch on the Dardenne road in St. Charles county, Mo. Plaintiff was riding as a passenger in the rear seat of a Willys-Knight automobile which was owned and was being driven at the time by her nephew, defendant Kram. In defendant Kram's car at the time, in addition to himself and plaintiff, were Kram's father and mother, his wife and two children. They were out driving for pleasure and had driven to St. Charles, where Kram's father expressed a desire to see a party who lived on the Dardenne road near the bridge. While Kram was driving in a northwesterly direction along that road, the collision occurred between his automobile and the automobile of defendant Ludwig at the culvert mentioned. Ludwig's automobile was going in a direction opposite to that of Kram's automobile. Ludwig was driving a 1929 Buick coupé. In his automobile at the time were his wife and a party of friends. They had spent the day at a clubhouse about two and a half miles northwest of the place where the collision occurred and were on their way home at the time. The road was dry and dusty at the time.

As a part of her case, plaintiff introduced in evidence and read as admissions against interest parts of the deposition of defendant Ludwig which had been taken prior to the trial, showing that he testified therein that Kram's automobile was about 150 or 200 feet ahead of him when he first saw it; that at that time he (Ludwig) was about 10 feet from the culvert; that he drove very slowly over the culvert at a speed of not more than 15 miles an hour and was almost across and had stopped when the collision occurred; that the right front wheel of Kram's automobile got hooked in the railing of the bridge and at the same time the two automobiles collided.

Plaintiff also introduced, and read in evidence as a part of her case, as admissions against interest, parts of the deposition of defendant Kram taken prior to the trial, which show that he testified therein that he first saw Ludwig's automobile when he (Kram) was at about the center of the culvert, and it then appeared to be a good distance from him; that his (Kram's) automobile was running close to the right-hand railing of the culvert when the left fenders and wheels of the two automobiles collided; that his (Kram's) automobile was so close to the right-hand rail when the collision occurred that his automobile was shoved right into the railing on the right-hand side. The railing ran from end to end of the bridge.

The culvert upon which the collision occurred was, according to all the evidence, about 14 feet in length and about the same number of feet in width. The road on either side of the culvert was approximately 25 feet wide and was made of chat.

Ludwig testified at the trial that there were weeds growing on the culvert for about 2 feet along on either side of the actual roadway thereof and that the culvert was used as a one-way passageway. Ludwig and his wife both testified that as they approached the culvert his automobile was going at a speed of about 25 miles an hour and they had slowed down going over the culvert. Ludwig testified that he had come to a stop at the time of the collision. The evidence shows that at the time of the collision Kram's automobile was against the railing of the culvert on Kram's right side. The two automobiles came in contact at their respective left front fenders, which overlapped 6 or 8 inches. The headlights on both automobiles were burning as they approached the culvert, and each driver saw the other approaching for some distance. Neither Kram nor Ludwig sounded a warning in approaching the culvert.

Ludwig further testified that during a period of 14 years he had driven over the road going back and forth to the clubhouse mentioned, and that the part of the road crossing the culvert had been used as a one-way driveway; that it was customary for a driver of an automobile, upon seeing another automobile approach, to "slack up and let the other fellow go over." He testified that Kram's automobile was about 150 or 200 feet away at the time he (Ludwig) was just coming onto the culvert; that he kept watching the other automobile and stayed in the center of the road; that before he got on the culvert he was going 25 or 30 miles an hour, but slowed down to 8 or 9 miles an hour on the culvert; that his automobile was not moving at the time the collision occurred; that "I slapped my brakes on and at that time the impact came. I saw his headlights a little bit before the impact. I stopped just about when the impact came, because he was speeding every bit of forty-five miles an hour. * * *" Ludwig testified at the trial that the right rear wheel of Kram's automobile hooked into the railing of the bridge. His deposition showed that he testified therein that it was the right front wheel of Kram's automobile that was caught in the bridge railing. He attributed his deposition testimony on this point to his misunderstanding...

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