Bashkow v. McBride, 26485.
| Decision Date | 08 February 1944 |
| Docket Number | No. 26485.,26485. |
| Parties | BASHKOW v. McBRIDE. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; William L. Mason, Judge.
"Not to be reported in State Reports."
Action by Maurice L. Bashkow against David McBride for personal injuries sustained by plaintiff in an automobile collision. Verdict for defendant and from a judgment sustaining plaintiff's motion for a new trial, defendant appeals.
Judgment reversed and cause remanded with directions.
Wilbur C. Schwartz, Morton K. Lange, and Orville Richardson, all of St. Louis, for appellant.
Kopitsky & Kessler and Chelsea O. Inman, all of St. Louis, for respondent.
This is an action by Maurice L. Bashkow against the defendant David McBride to recover damages for personal injuries alleged to have been sustained on October 16, 1941, as a result of a collision at the intersection of Minerva and Goodfellow avenues in the city of St. Louis between an automobile driven by Bashkow and a truck owned by defendant. There was a verdict and judgment for the defendant. The court sustained plaintiff's motion for new trial, and defendant appealed.
Goodfellow runs north and south, and Minerva east and west. Both streets are approximately 35 feet wide, and they intersect at right angles. At the time in question, plaintiff was proceeding east on Minerva and defendant's truck, driven by his employee, was traveling north on Goodfellow. Goodfellow boulevard is designated as a major street by a city ordinance which requires all vehicles proceeding on intersecting streets to stop before crossing such a major street. At Minerva, on Goodfellow there is a school stop established by an ordinance which requires all northbound vehicles to stop before entering the intersection in question.
Plaintiff testified that he made a boulevard stop about 17 feet west of the intersection. He looked to the south and saw defendant's truck 75 to 100 feet south of the intersection traveling 28 to 30 miles per hour. He shifted into second gear, and started to cross the intersection. When he reached a point beyond the center of Goodfellow, the right side of his automobile was struck by the front end of defendant's truck. He stated that the front of his car was about 20 feet into the intersection, or a little bit east of the center line of Goodfellow, when the right front wheel and right door of his car were struck by defendant's truck.
Larry O'Rando, the driver of defendant's truck, testified that on the occasion in question he stopped for the "go" sign of an electric signal at Goodfellow and Page, one block south of Minerva, and upon getting the green signal proceeded north toward Minerva avenue at about 15 miles per hour; that as he approached Minerva, he noticed plaintiff's car coming east, but because the stop signs require eastbound traffic to stop, he continued on at the same rate of speed. He further testified that as he entered the intersection, he noticed that plaintiff's car was not going to slow down or make the boulevard stop, so he sounded his horn and applied the brakes, but plaintiff continued on and swerved to the left, with the result that the right front fender and wheel of plaintiff's car ran into the left front fender, wheel, and bumper of the truck. He stated that the impact occurred on the east side of Goodfellow, when the front of the truck had almost reached the north curb line of Minerva. He further stated that defendant's truck, traveling 28 to 30 miles per hour, could be stopped, after the driver's foot hit the brake, in 40 feet; and in about half that distance going at the rate of 15 miles per hour.
Plaintiff's Instruction No. 1 submitted the case to the jury under the humanitarian doctrine, and his Instruction No. 2 predicated liability on defendant's primary negligence in failing to observe the school sign at the intersection. The defendant offered, and the court gave, the following sole cause instructions:
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