Beck v. Wurst Coal & Hauling Co.

• Citation: 293 S.W. 449
• Decision Date: 21 February 1927
• Docket Number: (No. 19581.)
• Court: Court of Appeal of Missouri (US)
• Parties: BECK, v. WURST COAL & HAULING CO.

293 S.W. 449

BECK, v. WURST COAL & HAULING CO.

(No. 19581.)

St. Louis Court of Appeals. Missouri.

February 21, 1927.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Agnes Beek against the Wurst Coal & Hauling Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Holland, Rutledge & Lashly, E. J. McCullen, and R. L. Ailworth, all of St. Louis, for appellant.

John S. Marsalek and Mark D. Eagleton, both of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries sustained by plaintiff, resulting from a collision between an automobile in which plaintiff was riding and a truck owned by the defendant and operated by defendant's driver. The collision occurred near the intersection of Manchester avenue and Kingshighway, in the city of St. Louis, on the afternoon of September 20, 1924. Manchester avenue runs east and west, and Kingshighway runs north and south. There are street car tracks on Manchester avenue. Just south of Manchester there is a broad viaduct on Kingshighway. A public roadway or street about 20 to 25 feet wide runs from Manchester avenue south to Swan avenue.. This roadway is east of and adjacent to the Kingshighway viaduct, and runs parallel with it. It is down grade going south from Manchester on this roadway. It was on this roadway that the collision occurred. The automobile in which plaintiff was riding was proceeding north on the east side of the roadway within a foot of the east curb. The truck operated by defendant's chauffeur ran south on the east side of Kingshighway at a speed of 25 miles per hour, swerved to the west to pass around or avoid a west-bound automobile on Manchester avenue, then swerved to the east, crossing the north-bound traffic on Kingshighway, and ran into the roadway on which the automobile in which plaintiff was riding was proceeding Northward, collided with the left rear portion of the automobile, then ran across the sidewalk and through a fence into a garden on the east side of the roadway. As a result of this collision, the plaintiff sustained the injuries for which she sues. The collision occurred 40 to 60 feet south of the south curb of Manchester avenue. It was a clear day, and there were no vehicles in the roadway at the time other than those involved in the collision.

The petition charges that plaintiff's injury resulted from negligence on the part of defendant, as follows: (1) That defendant negligently drove and operated its truck at a rate of speed high, excessive, dangerous, unreasonable, negligent, and not reasonably safe; (2) that defendant negligently failed to sound or give any signal or warning of the approach of its truck; (3) that defendant negligently failed to stop or slacken the speed, or turn or swerve its said truck, so as to avoid colliding with the automobile in which plaintiff was riding; (4) that defendant failed to exercise ordinary care to discover the automobile in which plaintiff was riding on the roadway; (5) that defendant negligently turned and swerved its said truck in ,o and against the automobile in which plaintiff was riding; (6) that defendant negligently caused and permitted said truck to travel and turn over to the left-hand side of the roadway, and negligently failed to keep the same on the right-hand side of said roadway; (7) that the defendant saw, or by the exercise of due care could have seen, said automobile in a position of imminent peril in time for defendant thereafter by the exercise of due care to have avoided the collision; and (8) that defendant negligently failed to keep its said truck as close to the right-hand side of the roadway as was practicable.

The court, at the request of defendant, instructed the jury that there was no evidence in the case that any insurance company was interested in the outcome of the case, and the court, on its own motion, instructed the jury that it required the concurrence of as many as 9 jurors to return a verdict. No other instructions were given. The trial, with a jury, resulted in a verdict in favor of plaintiff for $7,500, and defendant appeals.

The defendant requested the court to advise the jury that there was no evidence to sustain the assignments of negligence contained in the petition, to wit, the assignment that defendant negligently failed to sound or give any warning of the approach of its truck, and the assignment that the defendant saw, or by the exercise of due care could have seen, the automobile in which plaintiff was riding in imminent peril in time for defendant thereafter by the exercise of due care to have avoided the collision, and that the jury should ignore these assignments. Defendant insists that there was no evidence to support these assignments of negligence, and that, therefore, the refusal of the...