Boyer v. North End Drayage Co.
| Decision Date | 06 February 1934 |
| Docket Number | No. 22652.,22652. |
| Parties | BOYER v. NORTH END DRAYAGE CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; William H. Killoren, Judge.
"Not to be published in State Reports."
Action by Tom Boyer against North End Drayage Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Wilbur C. Schwartz, of St. Louis, for appellant.
Louis E. Miller, of St. Louis, for respondent.
This is an action to recover damages for personal injuries. Upon a trial thereof a verdict and judgment resulted in favor of plaintiff for $1,000. The defendant appeals.
Plaintiff's petition alleges that he was struck by a motorcycle of the defendant, operated by its employee while in the scope of his employment, while plaintiff was crossing from the north to the south side of Piggott avenue at or near its intersection with Tenth street in East St. Louis, Ill. The petition sets up five assignments of negligence, one of which is to the effect that the defendant negligently and carelessly operated the said motorcycle on the wrong side of the street, to wit, on the left side of said Piggott avenue while proceeding eastwardly thereon. The answer was a general denial.
The plaintiff's evidence tended to prove that on the 9th day of October, 1930, he was walking across Piggott avenue near its intersection with Tenth street in the city of East St. Louis, Ill., when he was struck and injured by a motorcycle driven and operated by one of the defendant's servants. It was admitted that Piggott avenue and Tenth street were open and public streets in the city of East St. Louis, Ill. Piggott avenue runs in an easterly and westerly direction, and Tenth street in a northerly and southerly direction. Plaintiff testified that before he started to cross Piggott avenue he looked in both directions and saw no traffic and proceeded to walk across the street, and, after he had gotten over on the north side of Piggott avenue, he was struck from the rear by the front part of defendant's motorcycle and knocked down and injured. Plaintiff's evidence also tended to prove that the place where plaintiff was injured was on the left-hand side of Piggott avenue and that the motorcycle was being driven eastwardly on the left-hand side of Piggott avenue.
Defendant's evidence tended to prove that the plaintiff suddenly walked out from between two automobiles parked and standing on the right-hand side of Piggott avenue directly in front of the motorcycle, and that the driver of the motorcycle immediately turned his motorcycle to the left and stopped as soon as he could, and that the side car attached to the right-hand side of the motorcycle in which newspapers were being carried to be delivered struck the plaintiff, and that the plaintiff was on the right-hand side of the street at the time when he claims to have been injured.
The trial court gave four instructions at the request of the plaintiff. Instruction No. 1 given by the court at the request of the plaintiff is as follows: "The court instructs the jury that if you find and believe from the evidence that on or about the 9th day of October, 1930, the plaintiff was a pedestrian in and upon Piggott avenue, at or near its intersection with 10th street in the city of East St. Louis, Illinois; and if you further find that while the plaintiff was in the act of crossing the said Piggott avenue from the south to the north side thereof at the place mentioned in the evidence, a certain agent, servant and employee of the defendant, North End Drayage Company, while in the scope of his employment and in the furtherance of the business of the defendant, North End Drayage Company, if you so find, drove and operated a certain motorcycle eastwardly upon and along the said Piggott avenue, and if you further find that the said motorcycle was caused and permitted to strike and injure the plaintiff, if you so find; and if you further find and believe from the evidence that at the time of the said collision and prior thereto as the said motorcycle approached the plaintiff and traveled eastwardly upon the said Piggott avenue, the said agent, servant and employee of the defendant, North End Drayage Company, negligently operated the said motorcycle on the wrong side of the street, namely, on the left side of the said Piggott avenue while proceeding thereon, if you so find; and if you further find...
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