Berthold v. Danz
| Decision Date | 06 May 1930 |
| Docket Number | No. 20804.,20804. |
| Citation | 27 S.W.2d 448 |
| Parties | BERTHOLD v. DANZ et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.
"Not to be officially published."
Action by William Berthold against Edward Danz and another. Judgment for defendants, and plaintiff appeals.
Affirmed.
George F. Heege, of Clayton, and Jesse H. Schaper and Randolph H. Schaper, both of Washington, Mo., for appellant.
James Booth and Virginia Booth, both of Pacific, and W. L. Cole and T. P. Hukriede, both of Union, for respondents.
This is an action for personal injuries sustained by plaintiff and for damages to his Ford automobile resulting from a collision between his said automobile and a truck driven by defendant, Overschmidt, and belonging to defendant, Edward Danz. The collision occurred on Kirkwood road in St. Louis County, between Rosehill avenue and the Frisco Railroad. Plaintiff was driving the Ford automobile southwardly, and defendant Overschmidt was driving the truck southwardly, behind plaintiff's car, when the accident occurred.
The specifications of negligence charged by plaintiff in his petition are, among others, (1) that notwithstanding there was a clear road ahead and plenty of room for defendant Overschmidt to pass plaintiff on the left, nevertheless, said defendant Overschmidt negligently failed to use said open space, and negligently ran into and collided with the rear of plaintiff's car; (2) that in approaching plaintiff's automobile from the rear, said defendant Overschmidt negligently failed to slacken the speed of said truck, or to slow down, or to stop the same, and avoid striking plaintiff's car. The other specifications of negligence charged in the petition need not be set out here, since plaintiff abandoned them at the trial and submitted his case to the jury solely on the two specifications which we have set out above.
The answer is a general denial coupled with a plea of contributory negligence.
The trial, with a jury, resulted in a verdict and judgment for defendants. Plaintiff appeals.
Plaintiff testified that he was driving along in his usual way, at about fifteen miles an hour, when his car was struck in the rear by the truck; that there was a truck standing on the right-hand side of the road; that he was driving about fourteen feet from the right-hand side of the road, and about a foot to the right of the center line of the road, leaving a space of about three feet between his car and the truck standing on the side of the road; that there was no other traffic on the road, nothing ahead of him, and no other automobiles standing on the right side of the highway; that the truck was facing south and was about five feet on the concrete; that the impact of the collision was so heavy that he was knocked unconscious, and that when he recovered consciousness his car was on the left side of the road, about eighty or ninety feet from the place where the collision occurred; that he did not stop his car before the collision occurred; that he gave no signal to stop because there was no occasion to do so; that the concrete slab on which he was driving is about thirty feet wide, and that he was driving on the right-hand side of the slab at the time the collision occurred; that the truck parked on the right-hand side of the road prevented him from driving any closer to the right-hand side than he did; that his car, after it was struck, ran into a telephone pole on the left-hand side of the road; that if he had been conscious he would not have struck the telephone pole because the road was wide enough; that the collision occurred as he was passing the truck parked on the right-hand side of the road.
Defendant Overschmidt testified that he was driving south on the Kirkwood road at a speed of about fifteen miles an hour; that he saw plaintiff's car ahead of him; that he saw the truck loaded with baled hay standing on the right-hand side of the road; that plaintiff's car swung around the load of hay and that he swung the truck right around it, and that when the car got opposite the load of hay it stopped; that when it stopped it was too far to the left side of the road for him to pass it on the left, so he tried to pass it on the right-hand side, but that he was unable to do so, and the collision occurred; that plaintiff did not give any sign or signal whatever, and did not have a stop light on his car, and that he had no idea that he was going to stop; that he applied the foot brake and emergency brake as quickly as he could, and turned to the right; that the plaintiff's car was on the left side of the road when the collision occurred; that there was room for him to pass the car to the right, between the car and the load of hay, but that he was unable to turn the car to the right far enough to avoid the collision, so that the left front fender of the truck struck the right rear fender of the car; that when the collision occurred, plaintiff's car, apparently out of control, ran down the road about 90 to 100 feet, and struck a telephone pole on the left side of the road; that after he saw plaintiff's car stop, without knowing it was going to stop, he could not have stopped the truck then any quicker than he did stop it; that he did not have his eyes off the road but was watching the car ahead of him as he approached it.
Joseph Henneken, who was riding in the truck with defendant Overschmidt, testified that the plaintiff's car made a sudden stop — stopped right at once — when the truck was about fifteen feet in back of it; that plaintiff did not give any signal that he was stopping; that when he stopped the left front fender of the truck struck the right rear fender of the car; that when the collision occurred the plaintiff apparently lost control of the car, and it ran down the embankment into a telephone pole; that when plaintiff's car first commenced to make the sudden stop the truck was about fifteen feet behind it and was traveling at about fifteen miles per hour; that when Overschmidt first put on his brakes the truck was about fifteen feet behind the car and that the brakes were on from that time until the collision occurred; that Overschmidt swerved the truck to the right to avoid hitting the car as much as he could.
At the instance of the plaintiff the court gave to the jury instructions 1 and 4, in substance, as follows:
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