Benzel v. Anishanzlin

• Decision Date: 19 July 1927
• Docket Number: No. 19774.,19774.
• Citation: 297 S.W. 180
• Parties: BENZEL v. ANISHANZLIN.
• Court: Missouri Court of Appeals

297 S.W. 180

BENZEL v. ANISHANZLIN.

No. 19774.

St. Louis Court of Appeals, Missouri.

July 19, 1927.

Error to St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Harrietta Benzel against Emil S. Anishanzlin. Judgment for plaintiff, and defendant brings error. Affirmed.

Geers & Geers, of St. Louis, for plaintiff in error.

Edward W. Foristel, of St. Louis, for defendant in error.

BECKER, J.

This case is here on a writ of error to review a judgment obtained by Harrietta Benzel against Emil S. Anishanzlin, in a suit for damages for personal injuries. For convenience and to avoid confusion the parties will be referred to as plaintiff and defendant, respectively, instead of defendant in error and plaintiff in error.

Plaintiff's petition alleges that on February 5, 1925, in the city of St. Louis, she was riding in an automobile which was then being driven and operated by Mrs. Addle Lewis, a friend of hers; that as the automobile was proceeding south on the west side of Taylor avenue across Natural Bridge road, the defendant's automobile, being driven east along said Natural Bridge road, collided with the automobile in which the plaintiff was riding causing her to be thrown to the street, seriously and permanently injuring her. The petition alleges that the collision and her injuries were the direct and proximate result of the negligence and carelessness of the defendant in the following respects: First, excessive speed; second, failure to sound or give any signal or warning; third, failure to have his automobile under proper control; fourth, failure to stop his automobile before the collision, when by the exercise of ordinary care defendant could have done so; fifth, failure to keep a lookout either ahead or laterally when the defendant, by the exercise of ordinary care in so doing, would have discovered the said automobile with plaintiff therein in time to have avoided said collision ; sixth, that the defendant failed to swerve his said automobile so as to avoid said collision, although by the exercise of ordinary care defendant could have done so; seventh, violation of the last chance doctrine; eighth, that the defendant failed to slacken the speed of his automobile so as to permit plaintiff and the automobile in which she was riding to get out of the path of defendant's car, when by the exercise of ordinary care defendant could have done so and have avoided said collision.

Defendant's answer contains a general denial and a charge of contributory negligence on the part of the plaintiff in that she allowed and permitted herself to be carried in an automobile driven in a careless and imprudent manner and at a rate of speed such as to endanger the property of others and the life and limbs of persons, which said automobile was so negligently and suddenly driven into and against the left side of defendant's approaching automobile that the defendant, by the exercise of ordinary care, could not stop his said automobile, or change its course, or reduce its speed, or sound a warning in time to avoid the collision with the said automobile in which plaintiff was riding, and when plaintiff saw or heard, or by the exercise of ordinary care could have seen and heard, the defendant's automobile crossing the intersection in question in time thereafter to have warned the driver of the automobile in which plaintiff was then so riding and have avoided the collision and resulting injury.

The reply was conventional.

Whilst plaintiff assigns as error the refusal on the part of the trial court to give to the jury the peremptory instruction in the nature of a demurrer to the evidence offered by the defendant at the close of all of the evidence, we note that this assignment is not adverted to under defendant's points and authorities in his brief, and that in the argument the sole plea in support of this assignment of error is directed to the weight and sufficiency of the evidence. However, we have read' the record carefully and readily come to the conclusion that the demurrer was well ruled, and we here set forth enough of the evidence to show the basis for this conclusion.

Plaintiff's own testimony is to the effect that she was a guest in an automobile, owned and being driven by Mrs. Lewis south on Taylor avenue, and as they approached Natural Bridge road, on which there are eastbound and west-bound street car tracks, and at a time when the automobile had already passed over the west-bound car tracks, she saw the defendant's automobile some 30 or 40 feet away coming east on Natural Bridge road, and that she exclaimed, "Oh, the man is going to hit us," and just as she said that the defendant's car struck the car in which she was riding, on the right-hand side near the front, causing her to be thrown from the automobile onto the street.

On cross-examination, she testified that when the car in which she was riding entered the intersection of Taylor avenue and Natural Bridge road, she saw no other cars around the intersection.

Harold McCormick, a witness on behalf of plaintiff, testified that he was an eyewitness to the accident; that he was seated in his car which was parked on the south side of Natural Bridge road, facing east, and within perhaps 35 to 50 feet of the southwest corner of Taylor avenue and Natural Bridge road, that he saw the defendant's automobile moving east on Natural Bridge road, approaching Taylor avenue; that the speed of defendant's car, which was running about 35 miles an hour, attracted his attention, and that defendant sounded no horn or other warning; that when he first saw the car in which plaintiff was riding it was on the west side of Taylor avenue, 25 feet from its intersection with Natural Bridge road; that when plaintiff's car reached the first rail of the street car tracks he saw the defendant's car west of him; that plaintiff's car was completely stopped, or moving very slowly, when the defendant's car collided with it, striking the right front fender; that defendant's car glen swung out into Taylor avenue until it struck the curb and tipped and hit a lamp post at the same time; that defendant's car was practically demolished; that as the defendant's machine struck the car in which plaintiff was riding he saw plaintiff's body come out of the machine and fall on the ground, and he went over and picked her up; that plaintiff's machine stopped where it was struck.

Addie Lewis testified by deposition that she owned and was driving the automobile in which plaintiff was riding at the time; that as she was driving south on Taylor avenue and approaching the intersection of Natural Bridge road therewith, there was a slow sign on Taylor avenue, and she slowed down at the sign to 5 or 8 miles an hour and shifted into second gear, and as she slowed down she observed the defendant's car that collided with her coming east on the south side of Natural Bridge avenue, 75 feet or 100 feet west of Natural Bridge road; that when her car had gotten onto the west-bound car tracks she was looking at the defendant who was still coming east, distant at that time about 60 feet; that she did not look in the defendant's direction after that because, as she stated, "I knew I had the clearance;" that when she was two-thirds across the intersection, and when the front of her car was on the south rail of the east-bound car tracks, the defendant's car ran into her car, striking the hub of the front right wheel.

Plaintiff also offered in...