Brucker v. Gambaro

• Decision Date: 03 October 1928
• Docket Number: 27104
• Citation: 9 S.W.2d 918
• Parties: BRUCKER v. GAMBARO et al
• Court: Missouri Supreme Court

9 S.W.2d 918

BRUCKER v. GAMBARO et al

No. 27104

Supreme Court of Missouri, First Division

October 3, 1928

Holland, Lashby & Donnell and Robert A. Holland, Jr., all of St. Louis, for appellants.

Goodman & Stephenson and Henry S. Cooke, all of St. Louis, for respondent.

OPINION

SEDDON, C.

Plaintiff, an elderly man of 72 years, recovered a unanimous verdict and judgment in the sum of $ 10,000 for personal injuries suffered by him when he was struck by an automobile owned by the defendant Steve Gambaro, and being operated and driven at the time by the defendant Frank Grassi, while plaintiff was standing upon the public sidewalk on the west side of Russell Place, at or near the intersection of Arsenal street, in the city of St. Louis. After unsuccessfully seeking a new trial, both defendants were allowed an appeal to this court. No question is raised respecting the sufficiency of the pleadings, and hence it is unnecessary to refer thereto, except to say that they are conventional in form and substance.

Arsenal street extends east and west, and Russell Place extends south from Arsenal street; in other words, the north terminus of Russell Place appears to be the south line of Arsenal street. It is agreed that both Arsenal street and Russell Place are open and public highways in the city of St. Louis. Plaintiff was injured on August 13, 1923, but the exact time of his injury, whether during the day or at night, is not clearly shown by the record. Plaintiff's evidence discloses, without dispute or contradiction, that plaintiff was standing upon and within the public sidewalk on the west side of Russell Place, a few feet south of the south line of Arsenal street awaiting a street car upon which he purposed to take passage. While thus standing upon the public sidewalk aforesaid, plaintiff was struck by an automobile owned by the defendant Gambaro, which, while rapidly turning the corner of the intersection of Arsenal street and Russell Place, ran upon and across the sidewalk upon which plaintiff was standing, and caught plaintiff between the automobile and a concrete wall, which was adjacent to, and bordered, the west sidewalk of Russell Place. Plaintiff was leaning or standing against the concrete wall, which was about four feet in height, and, according to plaintiff's testimony, the automobile 'got me between the side part, and then the machine moved a little, right up to the concrete wall, and fell over on me, and I was hanging over the side of the concrete wall; I was laying on that concrete wall, and the machine was laying on me.' Plaintiff was corroborated in his testimony by a woman witness, Miss Margaret Clancy, who was standing upon the same sidewalk, slightly in advance of plaintiff, and who also was awaiting the arrival of a street car upon which she purposed to take passage. Miss Clancy likewise was struck by the same automobile which struck and injured the plaintiff. She testified that the automobile in question had been traveling west on Arsenal street at a speed of about 40 miles an hour, and made a sharp and sudden left turn into Russell Place and ran upon and across the said sidewalk at a speed of about 25 or 30 miles an hour.

The only evidence respecting the ownership, use, and operation of the automobile at the time in question was given by the witness Andrees, a police patrolman, within whose beat, or round of official duties, the collision occurred, and who arrived upon the scene of the collision a very few minutes thereafter. On direct examination, the witness testified:

'Q. Did you see the defendant Steve Gambaro there at that time? A. Gambaro was there; yes, sir.

'Q. Did you hear him make any statements with reference to that car? A. Gambaro stated to me, when I arrived at the scene of the accident, that he was the owner of the car, and Grassi was driving his car for him, taking him in to his business.

'Q. At the time of this occurrence? A. At the time of the accident; yes, sir.'

Cross-examination:

'Q. You say Gambaro told you that Grassi was driving the car for him and taking him to his business? A. For his business, whatever business he had to transact in the city; I don't know where he was going at the time the accident happened, but-

'Q. (Interrupting) He didn't say anything about taking him to his business? A. He was Gambaro's chauffeur at the time of the accident.

'Q. Did Gambaro-I want to get this straight, though-did Gambaro tell you he was taking him to his business at that time, at the time the accident occurred? Did he say that Grassi was taking him to his business then? A. No, he didn't say; he didn't state to me that, where he was taking him at the time; he did not make any statements to me in regards to where his chauffeur was driving to.

'Q. What did he say about it? A. He told me that he was the owner of the car, and that Grassi was driving him.

'Q. Is that all he said? A. That is all he said. I took it for granted that his driver was driving for the purpose of his business, see.'

Redirect examination:

'Q. Did he say who was in the car at the time of the accident? A. Yes.

'Q. Who did he say was in that car? A. Why, Gambaro and his chauffeur.

'Q. His chauffeur? A. Yes, was in the car.'

The evidence respecting the injuries suffered by plaintiff as the direct result of the collision tends to show that plaintiff suffered a compound fracture of the femur of the right leg above the kneejoint; that the right side of his body from the arm to the foot was black and discolored; that there was a cut, or puncture, in the flesh of the right leg, through which a splinter of the broken femur protruded; that both ankles were bruised and injured; that plaintiff bled profusely from his injuries; that plaintiff was removed to the City Hospital, where he was confined by his injuries for a period of 61/2 months; that the fractured femur was united by means of a plate and screws, attached to the segments of the broken bone, thereafter necessitating the making of an incision in the right leg for the purpose of removal of the plate, after complete union of the bone had occurred; that plaintiff was placed in a plaster of paris cast, extending from the chest to the feet; that he remained in the plaster cast for a period of 5 or 6 weeks; that the right leg is about three-fourths of an inch shorter than the left leg; that plaintiff, upon walking, experiences the sensation of cramping in the toes and feet; that the movement of the right kneejoint is impaired and stiffened, and the flexion of the kneejoint is about 80 per cent.; that the right thigh is somewhat smaller than the left thigh, perhaps from disuse; that plaintiff suffers pain in the arch of the left foot and in the left ankle joint; that there is a noticeable deformity, or depression, in the right side of the chest, with some evidence of fracture of the ribs and a thickened pleura; that plaintiff complains of dizziness, frequent headache, and of occasional bleeding from the nose; that in the opinion of his attending physician, plaintiff's life expectancy has been decreased by about five years; and that plaintiff has been unable to work since his injury. Before his injury plaintiff had been intermittently employed as a bookbinder and as a musician in an orchestra. Some evidence was offered as to his average weekly earnings prior to his injury, but such evidence was excluded by the trial court upon the ground that loss of earnings and diminished earning capacity had not been pleaded in the petition.

The defendants offered no evidence in their behalf, but stood upon their separate demurrers to plaintiff's evidence, which demurrers were refused by the trial court.

I. Error is assigned in the trial court's refusal of the peremptory instruction in the nature of a demurrer to plaintiff's evidence, requested by the defendant Steve Gambaro, upon the ground that there is no evidence herein that Gambaro, himself, was driving the automobile which struck and injured the plaintiff, or that said automobile was then being used in furtherance of the business, convenience, or pleasure, of the defendant Gambaro. While appellants apparently concede that the evidence is sufficient to establish Gambaro's ownership of the automobile (which fact of ownership, we think, is amply established by the evidence), yet appellants argue that mere proof of the ownership of an automobile does not establish, or tend to establish, the actionable liability of the owner for negligence in its operation, and that no presumption arises from the mere proof of ownership that the operative of the automobile, at the time of the infliction of an injury to a third person, was driving the same as the agent of the owner, or that the automobile was then being used in the business, or for the convenience of the owner. In support of the foregoing contention, appellants cite the conclusions reached by this court in Guthrie v. Holmes. 272 Mo. 215, 198 S.W. 854, Ann. Cas. 1918D, 1123; Hays v. Hogan, 273 Mo. 24, 200 S.W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127; Barz v. Fleischmann Yeast Co., 308 Mo. 288, 271 S.W. 361; and Keim v. Blackburn (Mo. Sup.) 280 S.W. 1046.

The evidence herein respecting the ownership, use, and operation of the automobile, in our opinion, clearly differentiates the instant case from the cases above cited. In each and all of the aforesaid cases cited and relied upon by appellants herein, the proof conclusively showed that the owner of the automobile was not present at the infliction of the injury for which a recovery was sought. In the Guthrie, Hays, and Keim Cases, supra, the evidence tended to show that the...