Cool v. Petersen

Decision Date06 April 1915
Docket NumberNo. 13945.,13945.
Citation175 S.W. 244,189 Mo. App. 717
PartiesCOOL v. PETERSEN.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Leon Cool against J. T. Petersen. Judgment for plaintiff, and defendant appeals. Affirmed.

Henry B. Davis, Charles Erd, Carlisle Durfee, and Loren Massey, all of St. Louis, for appellant. J. E. Turner, of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of personal injuries received because of the negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

It appears that plaintiff was injured through being run upon by defendant's automobile while he was in the act of crossing St. Louis avenue on the west side of Vandeventer avenue in the city of St. Louis, at the place commonly used by pedestrians. Plaintiff was a passenger on an east-bound street car immediately before his injury. The street car company maintains double tracks in St. Louis avenue running east and west. The south track is occupied by eastbound cars while the north track is occupied by west-bound cars. Plaintiff was a passenger on an east-bound car, and alighted therefrom at the usual stopping place for such cars on the west side of Vandeventer avenue, which runs north and south, but in St. Louis avenue. He passed out of the front door of the street car, as is usual, and while it yet was standing walked immediately around the front end of the car, with a view to pass over the crossing for pedestrians to the northwest corner of St. Louis and Vandeventer avenues, intending to take a Vandeventer car south on Vandeventer avenue. Immediately as he emerged from in front of the car from which he had alighted, defendant's automobile, going eastward at a high rate of speed, ran upon him and inflicted the injuries complained of. The collision occurred in the early evening on a Sunday, and it was raining at the time.

The evidence for plaintiff tends to prove — and a number of witnesses who, were present all speak to the same effect — that defendant was running his automobile at a speed of about 35 miles per hour at the time, and he sounded no warning whatever of its approach. The automobile had been following the street car, and on the same track with it for several blocks, but upon the slowing down of the street car defendant left the south, or east-bound, track by turning to the left about a half block before reaching the point of collision and ran eastward on the north, that is, the west-bound, track at the high rate of speed above mentioned. A number of witnesses for plaintiff say the automobile was not only running at about 35 mile's per hour, but that no warning signal whatever was given, and it appears that plaintiff walked on the track after coming around the forward end of the street car from which he had alighted some six or eight feet in advance of the approaching automobile. On the part of defendant, the evidence tends to prove that while the automobile was going eastward on the northmost, or westbound, street car track, warning was given immediately before by sounding the horn attached, and also that the rate of speed was moderate. But be this as it may, the case was clearly one for a jury, and so much seems to be conceded in the briefs of counsel, for no argument is advanced to the contrary.

The principal argument for a reversal of the judgment relates to several instructions given on the part of plaintiff because they appear to be abstract declarations of law without reckoning closely with the facts, and a trivial suggestion is directed, too, against the first instruction given by the court of its own motion. To the end of considering these arguments, we set forth the first instruction complained of, which is as follows:

"At The court instructs the jury that if you find and believe from the evidence that St. Louis avenue is a public street in the city of St. Louis, crossing another public street known, as Vandeventer avenue, and that said streets at the place of their intersection are much used for travel, and if you further find and believe from the evidence that on or about the 21st day of April, 1912, the defendant was running and operating the automobile mentioned in the evidence, running the same upon and along St. Louis avenue in an eastwardly direction from a point west of Vandeventer avenue, and if you further find from the evidence that at said time the plaintiff was lawfully upon said St. Louis avenue and attempting to cross said street at or about its intersection with the west line of Vandeventer avenue, and you further find that at said time and place the defendant approached said west line of Vandeventer avenue in his automobile, and that he then and there negligently and carelessly operated said automobile by running it at an excessive, high, and dangerous rate of speed and by failing to check the speed thereof as it approached said west line of Vandeventer avenue, or carelessly and negligently failed to give a warning or signal of the approach of the automobile as it approached said west line of Vandeventer avenue, and if you further find that by reason of such acts or either of them the defendant's automobile ran into or against plaintiff and injured him, and if you further find from the evidence that plaintiff was exercising ordinary care for his own safety, then your verdict must be for plaintiff."

This instruction was given by the court of its own motion and submits the precise specifications of negligence relied upon in the petition and so thoroughly developed in the evidence. It is proper in every respect, for it requires the jury to find the acts of negligence alleged and established at the trial. But the instruction is criticized because it is said that it calls for a finding of fact on the part of the jury that Vandeventer avenue and St. Louis avenue, at the point of the collision, were public thoroughfares of the city of St. Louis at the time of the trial, without requiring a finding that they were such public thoroughfares at the time plaintiff received his injury. This argument is wholly without merit, for the case throughout concedes that both streets were public thoroughfares. There was no issue concerning this matter in the case, and all of the evidence tends to prove that both plaintiff and defendant were using the streets at the time of the collision as such. Furthermore, there is evidence that a dozen other persons were using the streets as such at that time and place.

The other instructions against which an argument is directed are as follows:

"(2) The court instructs the jury that any person operating an automobile running on, upon, along, or across a public road, street, or highway, or place much used for travel, is required to use the highest degree...

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