Bauer v. Fahr

• Decision Date: 02 March 1926
• Docket Number: No. 19320.,19320.
• Citation: 282 S.W. 150
• Parties: BAUER v. FAHR et al.
• Court: Missouri Court of Appeals

282 S.W. 150

BAUER v. FAHR et al.

No. 19320.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, St. Louis Comity; John W. McElhinney, Judge.

"Not to be officially published."

Action by Fred Bauer against Theodore Fahr and another. Judgment for plaintiff, and defendants appeal. Affirmed.

George F. Heege, of Clayton, for appellants.

Frank J. Quinn and Coffman & Jackson, all of St. Louis, for respondent.

BECKER, J.

This action arises out of a collision of two automobiles, in which collision it is alleged plaintiff's wife met with injury and his automobile was damaged. Plaintiff obtained judgment for $900 for medical expenses incurred and loss of services of his wife, as well as for damage to his automobile.

It appears that the defendant Theodore Fahr was the owner of a Reo automobile truck, and that on the 12th of June, 1923, his son, Henry Fahr, also a defendant in the case, was driving the said truck at the direction of and in connection with the business of his father. On the Olive Street Road in St. Louis county, near the village of Stratman, young Fehr was driving the truck east on the right-hand or south side of the road close to two machines that were immediately ahead of him traveling in the same direction, whilst the plaintiff was approaching from the east, driving an automobile in which his wife and child and Leslie L. Chapman and wife were riding with him. At this juncture plaintiff testified that as he was traveling west on the Olive Street Road he saw three automobiles approaching from the west, and when he had gotten within one-half block of the first of these automobiles he saw the defendant drive out from behind the second of the automobiles, evidently intending to pass the two automobiles in front of him. Plaintiff immediately slackened the speed of his car, realizing that the on-coming truck of the defendant was going to collide with his automobile. He turned his automobile to the right, and had gotten six feet in the clear of Olive Street Road on the north side thereof when the defendant's truck crashed into the front of his automobile. At the moment of the collision plaintiff's automobile was almost at a standstill. Plaintiff testified that when he first saw defendant's truck coming out from behind the two automobiles that were in front of it, it was traveling 30 miles per hour, and that said speed was maintained up to the time of the impact; that after the collision Henry Fahr, who was driving the truck, got down from the driver's seat, and in answer to the question as to what he was trying to do, replied that his brakes were not working.

Plaintiff was corroborated with reference to the manner in which the accident occurred by witness Leslie L. Chapman, who was one of plaintiff's guests in the automobile at the time. Chapman, on cross-examination to the question, "Fahr told you, that is, Henry, that he didn't see your machine, and when he did see you, he tried to speed up and get across the road and avoid the collision?" answered, "Yes, sir."

Plaintiff's version of the collision is further corroborated by witness Otto R. Dauster, a farmer and road overseer, and witness Charles P. Jung, both neighbors of defendants, and both of whom saw the collision.

Defendant Henry Fahr testified that at the moment when he determined to pass the automobile ahead of him, and at the time when plaintiff's automobile was approaching him in the opposite direction on the Olive Street Road —

"I blew my whistle warning them that I was going to pass. The machine that I was going to pass ran up close to the other and switched out to the left, bringing me to my left. Noticing Mr. Bauer (plaintiff) coming west, I brought my truck away to the left-hand side of the street to avoid a head-on collision.

"Q. What happened? A. As I done that I struck Bauer's automobile. * * *

"Q. Did you make any statement to Bauer that you couldn't stop because your brakes were out of order? A. Yes, sir."

And from this same defendant's cross-examination we quote the following:

"Q. How far away was plaintiff's automobile when you first saw it? A. About a hundred feet.

"Q. On what part of the road was he at that time? A. He was on his right side.

"Q. And what part of the road did you occupy at that time? A. Center.

"Q. And where were the two cars which you state were ahead of you? A. About not quite even with me.

"Q. You mean you were going along abreast of them? A. Yes, sir.

"Q. You were the farthest on the left? A. Yes, sir.

"Q. Do you mean you were going three abreast, or was there two ahead of you, or one ahead of you, or what? A. This one that was ahead of me got out when I was in the center And brought me further over yet to the left, and to avoid hitting Mr. Bauer I cut across the street. * * *

"Q. Where were you then? A. I was attempting to pass these cars.

"Q. Which one? A. The closest one to me.

"Q. There was another still ahead of you? A. Yes, sir.

"Q. How far were you behind it? A. We were just both making an attempt to pass him.

"Q. You were both at the same time making an attempt to pass him? A. Yes, sir. * * *

"Q. How fast were you going? A. Between 20 and 25 miles per hour.

"Q. You would judge the other fellow was going about the same rate? A. Yes, sir.

"Q. You were trying to get ahead of him? A. Yes, sir.

"Q. And he was trying to get ahead of the other fellow? A. Yes, sir.

"Q. And you were going to try to get ahead of both of them? A. Well, I was going to pass both of them.

"Q. You were going to get ahead of both of them? A. Of both of them. *

"Q. What was the matter with your brakes that day, Mr. Fahr? A. Well, they weren't just working right."

Appellants urge here that plaintiff's instruction numbered 1, which covers the entire case and directs a verdict, is erroneous, in that this instruction is based upon two separate and distinct acts of negligence: First, that the defendant failed to keep his automobile to the right of the center of Olive btreet Road: and, second, that the defendant Henry Fahr failed to keep a lookout ahead of his automobile truck, when in fact there is no evidence to support the submission of the question of defendant's negligence to the jury as for a failure to keep the necessary lookout. What we have quoted above from the cross-examination of witness Chapman, to the effect that Henry Fahr told him that he did not see plaintiff's machine and that when he did he tried to speed up to get across the road and avoid a collision, is sufficient to warrant the submission in an instruction of that assignment of negligence. However, we note that the instruction complained of submitted the two assignments set out in the petition in the conjunctive and not disjunctive, so that the jury were required to find the defendants guilty of both acts of negligence before they could find a verdict for plaintiff, though plaintiff was entitled to recover if he proved but one of his actionable...