Bradley v. Becker

• Decision Date: 24 November 1928
• Docket Number: No. 26246.,26246.
• Parties: OWEN BRADLEY, Administrator of Estate of MARY BRADLEY, Appellant, v. CHARLES J. BECKER.
• Court: Missouri Supreme Court

11 S.W.2d 8

OWEN BRADLEY, Administrator of Estate of MARY BRADLEY, Appellant, v. CHARLES J. BECKER.

No. 26246.

Supreme Court of Missouri. Court en Banc.

November 24, 1928.

Appeal from Circuit Court of City of St. Louis — Hon. M. Hartmann, Judge.

REVERSED AND REMANDED.

C.J. Anderson and Earl M. Pirkey for appellant.

(1) There is substantial evidence in the case to the effect that the driver of the limousine did not and could not see respondent's truck until he had got to the building line because of an obstructing beer truck at the corner. The ordinance, and ordinary care as well, under these circumstances required the driver of respondent's truck to sound a warning before he got to the corner. The ordinance, in specific terms, requires a vehicle on approaching a corner, that is, before it gets to the corner, to sound a warning. There was direct testimony of a number of witnesses that no warning was given. This instruction tells the jury that there was no evidence to sustain the charge of negligence against respondent in failing to sound a horn. This ruling undertook to say that the testimony of these three witnesses was not evidence and it therefore discredited these witnesses. The instruction did not tell them that this testimony was to be disregarded but it told them that there was no evidence when in point of fact there was evidence. The plain meaning of this instruction is that the testimony of these witnesses was untruthful, and it is reversible error for an instruction to say that there is no evidence on a particular point when there is evidence on that point. Bussey v. Don, 259 S.W. 791. The instruction is also erroneous because when a cause has been tried the decision of the appellate court on the first trial is the law of the case on the second trial. Miller v. Gavin, 123 Mo. App. 333; Chapman v. Railroad, 146 Mo. 494. Under the same evidence, only less in amount, at the former trial the Supreme Court, en banc, held that the assignment of negligence of no warning was supported by the evidence and should be submitted to the jury. Bradley v. Becker, 246 S.W. 364. (2) Ordinance 1264 pleaded in the petition and introduced in evidence provides that the drivers of motor vehicles of all kinds when approaching a crossing shall sound their signals in such a way as to give warning to other vehicles and to pedestrians of their approach. Had respondent's driver given a warning of his approach so that the driver of the limousine would have had some reason to anticipate his presence onto Gravois Avenue, a heavily traveled street, the collision would have been avoided. The view of the driver of the limousine was obstructed, negligence in giving no warning was pleaded, the Supreme Court, en banc, held that such issue was in the case on the state of facts appearing in this record, yet the court excluded the evidence, and although some witnesses had testified to the fact of no warning the court said there was no evidence of the lack of warning. There is no antidote or cure for these errors; they have the double effect of excluding a part of the testimony and an issue on which the case rested, and a further prejudicial effect in telling the jury that the testimony of certain witnesses was no evidence at all. Mueller v. Holekamp, 260 S.W. 118; Bussey v. Don, 259 S.W. 791. (3) Plaintiff offered Instruction E, submitting to the jury the question of whether or not respondent's driver gave warning and if not whether it was a direct cause of the collision. This instruction was refused by the court. This ruling was made in defiance of the law as laid down by the Supreme Court, en banc, at a former trial and in the face of such testimony held in such decision to be proper and offered in this case. Bradley v. Becker, 246 S.W. 364; Mueller v. Holekamp, 260 S.W. 118. (4) Instruction 12, given at the instance of respondent, told the jury that if they found from the evidence that whatever injuries, if any, were sustained by plaintiff resulted directly and solely from the negligence of the limousine defendants, or either of them, then the plaintiff could not recover against the defendant Charles J. Becker. Plaintiff was a passenger in the limousine. This instruction therefore should have told the jury that the negligence of the driver of the limousine could not be imputed to the plaintiff and failing to do so was reversible error. Peppers v. Railway Co., 295 S.W. 760; Boland v. Railroad, 284 S.W. 141; Fisher v. Pullman Co., 212 Mo. App. 280. (5) Instruction 15, given at the instance of respondent, is misleading because it indicates to the jury that if the limousine defendants were negligent they were solely liable. The instruction is erroneous also because it is broader than the pleadings. It exonerates defendant Becker if the other defendants were guilty of any negligence at all. State ex rel. Central Coal Co. v. Ellison, 270 Mo. 653.

Kelley, Starke & Hassett for respondent.

(1) The court properly refused plaintiff's Instruction E, which told the jury, and properly gave and read to the jury defendant's instruction numbered ten. Peterson v. United Rys. Co., 270 Mo. 67; Murray v. Transit Co., 176 Mo. 189; Hutchinson v. Mo. Pac. Ry. Co., 161 Mo. 246; Heintz v. Transit Co., 115 Mo. App. 671. (2) The verdict and judgment in favor of the defendant Becker are for the right party, and no reversible error was committed by the trial court in the giving or refusing of instructions which materially affected the merits of plaintiff's cause of action against the defendant Becker. The judgment should not be disturbed, because upon the whole record it is manifestly for the right party. R.S. 1919, sec. 1513; Loan & Trust Co. v. Surety Co., 285 Mo. 652; Trainer v. Mining Co., 243 Mo. 359; Quinn v. Railway Co., 218 Mo. 545; Mockowik v. Railroad, 196 Mo. 550; Moore v. Lindell Ry. Co., 176 Mo. 528; Von DeVeld v. Judy, 143 Mo. 348. (3) No reversible error was committed by the trial court in the exclusion or admission of evidence which materially affected the merits of plaintiff's cause of action against the defendant Becker, and the judgment should not be disturbed, because upon the whole record it is manifestly for the right party. Von DeVeld v. Judy, 143 Mo. 368.

ELLISON, C.

This is the second appeal in this case. The former is reported in 296 Mo. 548, 246 S.W. 561. The action is for $15,000 damages sustained by appellant's intestate, Mary Bradley, in an automobile collision at the intersection of Gravois Avenue and Chippewa Street in St. Louis. With members of her family she was riding to the funeral of a relative in an automobile provided and operated by the Mayer Undertaking Company and the Reliable Auto Livery Company — referred to in the record as the "limousine defendants" and hereinafter so designated. The automobile collided with a Ford motor truck owned and operated by the defendant-respondent Charles J. Becker, the intestate's injuries resulting.

She brought this suit against the three defendants named and on the second trial had a verdict against the limousine defendants for $2500, but the jury found for the respondent. Both she and the limousine defendants appealed. Thereafter Mary Bradley died and her appeal was revived in this court in the name of her administrator under Section 4231, Revised Statutes 1919. The limousine defendants failed to prosecute their appeal and have dropped out of the case. Appellant makes twenty-eight assignments of error in his brief. All complain of the giving or refusal of instructions, and the admission or exclusion of evidence. It will not be necessary to cover the whole field of controversy to dispose of the case.

Gravois Avenue runs from southwest to northeast — more east than north — and Chippewa Street almost due east and west. The former is a wide thoroughfare with double street-car tracks in the middle, and a considerable volume of rapid motor traffic, whereas the latter is a little-used, macadamized by-street. In the intersection area of the two streets the brick paving on Gravois Avenue is extended out to the property lines. At the southeast corner of the intersection is a brick building formerly used as a saloon, which stands out flush with the east line of Gravois Avenue but some twelve feet back from the south line of Chippewa Street. At the time of the accident a beer truck was standing alongside the east curb of Gravois Avenue in front of this building. The front of the beer truck projected north of the brick building three or four feet to within eight or nine feet of the south line of Chippewa Street, and to one coming from the south on Gravois Avenue tended to obstruct the first view northeasterly of Chippewa Street.

Early in the afternoon of a bright, clear day in November, 1918, the limousine in which the intestate rode was going north, or northeasterly, on Gravois Avenue, traveling within four to eight feet of the east curb. As it approached Chippewa Street and got within twenty-five to fifty feet of the intersection it was running at a speed of twelve to fifteen miles per hour, the driver, Bernard Hoppe, testified. At that point he turned a little to the left to pass the beer truck, sounded his horn and slowed down to eight or ten miles per hour, moving during the operation something near twenty feet. When he got even with the front of the beer truck he saw for the first time the Ford truck driven by respondent's employee, Max Schoenemann, approaching the intersection from the east, on Chippewa Street. It was traveling in the middle of Chippewa Street at a speed of twenty or twenty-five miles per hour, and was about fifteen feet back east of the edge of the paving — the east property line of Gravois Avenue. During the instant of time it took Hoppe to realize how fast the truck was going it had traveled probably twenty feet. He undertook to stop "right then." He says:

"I then swerved to my left and brought my car practically to a stop about the middle of the two — I put...