Carr v. St. Louis Auto Supply Co.

• Decision Date: 14 March 1922
• Docket Number: No. 22365.,22365.
• Citation: 293 Mo. 562,239 S.W. 827
• Parties: CARR v. ST. LOUIS AUTO SUPPLY CO.
• Court: Missouri Supreme Court

239 S.W. 827

293 Mo. 562

CARR v. ST. LOUIS AUTO SUPPLY CO.

No. 22365.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Motion for Rehearing Overruled April 8, 1922.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Action by Luko Carr against the St. Louis Auto Supply Company. From judgment for defendant, plaintiff appeals. Reversed, and remanded for new trial.

Albert E. Hausman, of St. Louis, for appellant.

Case & Miller, of St. Louis, for respondent.

BROWN, C.

This is a suit for personal injure alleged to have been suffered by plaintiff by the act of defendant in so wrongfully and negligently manipulating a motortruck of defendant being controlled, managed, and driven by its servant or agent in Grand avenue, in the city of St. Louis, as to cause an automobile in which the plaintiff was riding as a gratuitous passenger or guest, to be turned aside and overturned thereby causing plaintiff to be thrown out of said vehicle and seriously injured, to his damage in the sum of $10,000. The petition

alleged that the defective condition of the street at the time contributed to the accident, that it was the primary duty of the city of St. Louis to keep it repaired, and that that duty had been assumed by the United Railways Company under a contract by which it had been imposed as a condition of the permission granted said company to occupy said street for the purpose of constructing and operating its double-track electric street railway thereon, and both the city and the railway company were originally made parties defendant. No question is suggested as to the sufficiency of the petition to present the points made upon this appeal.

The evidence of the plaintiff tended to prove that on December 4, 1918, about 1 o'clock p. m., he was riding as a gratuitous passenger in an automobile owned by one John Blasitz and driven by one Welch, who was Blasitz's chauffeur; that while the car in which the plaintiff was being driven southwardly on Grand avenue, an open public street in the city of St. Louis, between Humphrey street and Wyoming street, a motortruck owned and operated by the St. Louis Auto Supply Company was also being driven southwardly on the same street; that the motortruck was to the right or west of the automobile, and that when the automobile was a few feet north of the motortruck the latter was suddenly turned to the left or east immediately in front of the automobile in which plaintiff was riding; that thereupon the driver of the automobile, in order to avoid a collision, turned his automobile to the left, and thereupon it struck a depression or rut in the street and immediately turned over, injuring the plaintiff.

Plaintiff further introduced evidence tending to prove that there was in force in the city of St. Louis on the date of his injury an ordinance known as Revised Ordinance No. 3013, approved April 12, 1918, and that section 1270 of said ordinance 3013 provides that "a vehicle in turning to the left into another street shall pass to the right of and beyond the center of the intersection of the streets before turning," and that section 1274 of said ordinance provides that a signal shall be given in advance by the driver of the vehicle to be turned to the right or left by putting the hand with the arm extended straight to the right or left indicating plainly to pedestrians, officers, and drivers of vehicles the exact direction in which the turn is to be made; also that said provisions were, by ordinance, made applicable to turnings into alleys.

Plaintiff further introduced evidence tending to show that the driver of the motortruck of the St. Louis Auto Supply Company did not hold out his left arm and hand in accordance with section 1274 of said ordinance immediately before he turned said vehicle to the left, and that at the time of turning said vehicle to the left he had not passed to the right and beyond the center of the intersection of the streets before turning.

Plaintiff further introduced evidence tending to show that, because the driver of the motortruck did not hold out his hand and arm to the left before so turning, the driver of the automobile in which plaintiff was riding was unaware of his intention to turn and was forced to turn the automobile into that part of the street where the rut above mentioned was to avoid a collision with the motortruck; that the car thereupon turned over at once, and the plaintiff was injured.

Defendant St. Louis Auto Supply Company then introduced evidence tending to prove that immediately prior to the overturning of the automobile in which plaintiff was riding said defendant's motortruck was being driven southwardly on the west side of Grand avenue at a speed of 8 or 6 miles per hour; that, when the chauffeur in charge of said truck came opposite an alley which intersected Grand avenue from the east, he held out his left arm with the hand extended; that being the usual and proper signal to warn others driving southwardly in Grand avenue that he was about to turn to the left into the said alley; that the automobile in which plaintiff was riding was being driven southwardly on Grand avenue to the north of or behind said defendant's automobile; that, when said defendant's chauffeur held out his left arm and hand, the other automobile was coming southwardly at a very rapid rate, and the chauffeur thereof drove his car into a small break in the pavement of Grand avenue in an effort to cut in front of defendant's motortruck, and that the car in which plaintiff was riding then immediately turned over; that the truck of the defendant was turned towards the southeast, and had stopped, when the car in which plaintiff was riding shot past it, to the east of it, and struck the hole or break in the street, and immediately turned over to the left; that all this took place at 12:30 or 12:45 p. m.; and that it was daylight.

Further reference will be made to the testimony if necessary.

At the close of the evidence the court gave for plaintiff the following instruction:

(2) "The court instructs the jury that, if you find and believe from the evidence that plaintiff on December 4, 1918, was a passenger in an automobile being driven southwardly on the west side of Grand avenue in the city of St. Louis and between Wyoming and Humphrey streets; and if you find that at the same time and place an automobile driven by the agent and servant of St. Louis Auto Supply Company was also being driven southwardly on said west side of Grand avenue; and if you find that as said two automobiles were so proceeding southwardly on Grand avenue the said automobile of St. Louis Auto Supply Company was a few feet to the right or west of and a short distance in front of or to the south of the automobile plaintiff was in; and if you find from the evidence that the chauffeur in charge of the automobile of St. Louis Auto Supply Company suddenly and without any signal by putting out his hand...