Brooks v. Menaugh

• Decision Date: 25 May 1928
• Docket Number: No. 27954.,27954.
• Citation: 6 S.W.2d 902
• Parties: MARY BROOKS v. HARRY MENAUGH and WESLEY DENT; HARRY MENAUGH, Appellant.
• Court: Missouri Supreme Court

6 S.W.2d 902

MARY BROOKS v.HARRY MENAUGH and WESLEY DENT; HARRY MENAUGH, Appellant.

No. 27954.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Circuit Court of City of St. Louis.— Hon. Granville Hogan, Judge.

TRANSFERRED TO ST. LOUIS COURT OF APPEALS.

Jones, Hocker, Sullivan & Angert for appellant.

Earl M. Pirkey for respondent.

WHITE, J.

Suit for damages on account of personal injuries.

The plaintiff was riding as a guest in the car of Harry Menaugh, who was driving eastwardly on Winnebago Street.Wesley Dent was driving north on California Avenue, when his car collided with that of Menaugh, at the intersection of the two streets.It is alleged that the defendants so negligently managed and operated their automobiles that the car operated by Menaugh ran upon the sidewalk and a collision ensued between the two automobiles, causing the plaintiff's injuries.The specific acts of negligence of the defendants are set out in the petition.

On a trial in the Circuit Court of the City of St. Louis there was a verdict in favor of the defendantWesley Dent, and in favor of the plaintiff against Harry Menaugh, awarding plaintiff $2500 damages.From that judgment Menaugh appealed.

The amount involved does not give this court jurisdiction.No constitutional question was raised in the pleadings.In the motion for new trial the appellant assigns error in that the court instructed the jury that under the law the defendants were obliged to use the highest degree of care, "... because said instructions are based and predicated upon the section of the statute found at page 91 of Session Laws 1921, which is in violation of Section 28 of Article IV of the Constitution of the State of Missouri," and "that said instructions based upon said Section 19, at page 91, of Acts of the extra session of the Legislature convened June 14, 1921, requiring the defendants to use the highest degree of care, are in violation of Section 55 of Article IV of the Constitution of the State of Missouri," setting out that provision of the Constitution.

In overruling the motion for new trialthe court may be said to have determined this constitutional question against the defendant.

However, this court has no jurisdiction of the case on account of the constitutional question, because the question was abandoned in the briefs, presented to this court.The appellant presents an elaborate assignment of errors, complaining in detail of the particular instructions...