Croak v. Croak

• Decision Date: 06 January 1931
• Docket Number: No. 21321.,21321.
• Citation: 33 S.W.2d 998
• Parties: CROAK v. CROAK.
• Court: Missouri Court of Appeals

33 S.W.2d 998

CROAK v. CROAK.

No. 21321.

St. Louis Court of Appeals. Missouri.

January 6, 1931.

As Modified on Denial of Rehearing January 23, 1931.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be officially published."

Action by Nellie A. Croak against John E. Croak. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Leahy, Saunders & Walther, Lyon Anderson and William O'Herin, all of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment of $7,500 in favor of plaintiff for personal injuries she suffered in an automobile collision.

The petition alleged, and the evidence showed, that on December 10, 1927, plaintiff was a passenger in an automobile owned and operated by the defendant, her stepson, which was being driven westwardly on Waterman avenue in the city of St. Louis, and that at a certain point in the 6100 block on that street defendant's machine collided with a parked car, by reason of which she received her injuries. The petition sets forth seven specifications of negligence as follows:

"(1) That defendant carelessly and negligently failed to keep a vigilant watch for other vehicles in the pathway of said automobile when defendant by the exercise of the highest degree of care could have seen and could have passed said automobile parked on the north side of said Waterman Avenue without colliding with it.

"(2) That defendant, immediately prior to the collision with said parked automobile, negligently failed to swerve his automobile so as to avoid colliding with same.

"(3) That defendant, immediately prior to the collision with said parked automobile, negligently and carelessly swerved to the right side of said Waterman Avenue, causing his automobile to collide with said parked automobile.

"(4) That defendant negligently failed to have his automobile under such control that it could be readily and reasonably stopped upon the appearance of danger of collision with said parked automobile.

"(5) That defendant at the time of and immediately prior to the collision with said parked automobile failed to operate his automobile in a careful and prudent manner and negligently failed to exercise the highest degree of care and to operate the same at a rate of speed so as not to endanger the life, limb or property of another, particularly the plaintiff, negligently drove the same at a rate of speed and in a manner which was at the time not careful and prudent, considering the time of day, the amount of vehicular and pedestrian traffic and the condition of the highway and the location with reference to intersection of highways and curbs.

"(6) That defendant operated said automobile at a high and dangerous rate of speed, to-wit, thirty-five miles an hour.

"(7) That although defendant at the time of and immediately prior to the collision with said parked automobile, saw, or by the exercise of the highest degree of care, could have seen that plaintiff was in a position of imminent peril in time thereafter for defendant by the exercise of the highest degree of care and with the means and appliances at hand and with safety to himself, his automobile and the occupant of his automobile, to have stopped his automobile or slackened the speed thereof or swerved the same and could thus and thereby have avoided the collision between his automobile and the said parked automobile, but that defendant negligently failed to do so."

She then alleges that on January 3, 1928, her right knee gave way, causing her to fall and break her right hip, which has caused a shortening of the right leg, that said injury is of a permanent character, and was directly and proximately caused by the previous injury sustained on December 10, 1927.

The amended answer was a general denial and a plea that the parties were mother and son, living in the same household, and, at the time of the injury, were engaged in a joint undertaking and joint enterprise, in that they were going to the grocery store for supplies for their dinner.

The defendant complains that the trial court erred in refusing to give certain withdrawal instructions which he requested, and also erred in instructions given at the instance of plaintiff.

Defendant complains of instruction No. 2 given at the instance of plaintiff, in that, among other things, it permitted plaintiff to recover if the jury found that defendant carelessly and negligently failed to keep a vigilant watch for other vehicles in the path of his automobile, when by the exercise of the highest degree of care defendant could have seen and could have passed the parked automobile, without colliding with it.

The evidence discloses that there was an obstruction on the south side of Waterman avenue, about the middle of the block, and opposite the point where the automobile was parked with which defendant's machine collided. According to the testimony of plaintiff, this consisted of building material with a light on it, and extended to a point south of the center of the street where a mortar box was located, while, according to the defendant, the obstruction consisted of foundation rocks, and extended out to a point that would require east-bound traffic to straddle the center of the street. Plaintiff further testified that just before the collision she was looking in her pocketbook, and when she looked up she saw a car coming around the obstruction, and she became frightened because she thought there was going to be a collision between that automobile and the one she was in, and it was then that her stepson swerved his car and came into collision with the parked car on the north side of the street.

On direct examination plaintiff testified (over the objection of defendant that she was not qualified) that their car was going about 35 miles an hour, but on cross-examination stated she would not say she was a judge as to speed, and did not know whether the car was going 25 or 35 miles an hour.

Defendant testified that he was driving between twenty and twenty-five miles per hour, and he had observed the parked car when he was fifty feet east of it, and he gradually went towards the north, knowing he had to go through the space at the obstruction, but he had been through there before, and did not think he would have any trouble going through it; that he did not do any sharp swerving; that he did not realize he was going to hit the parked car until he hit it; that at the time of the impact cars were passing going east. He also testified that he thought Waterman avenue was about forty feet wide, he had not measured it; that he imagined east-bound traffic would have to straddle the center of the street to get by the obstruction; that, assuming such to be the fact, one-half the street would be twenty feet; and that his car and the parked car were about five feet wide each, and, if the east-bound traffic was two and one-half feet over the center of the street, on those figures, there would be seven and a half feet clearance; that he had thought he had room enough to pass. The evidence does not indicate the distance between the east-bound car and the parked car at the north curb.

We think the court erroneously included this specification of negligence in the instruction. The defendant may have been guilty of the want of the highest degree of care in attempting to pass, under the circumstances, in that he failed to have his automobile under proper control, which is covered by the instruction, but there is no evidence that he failed to exercise vigilant watch to observe the parked car, which is the charge laid in the petition. The evidence shows that he did see the parked car when he was fifty feet east of it, and his failure to safely pass it was due to causes other than the one discussed.

It matters not how broad the petition may be, "the instructions should submit only the specific negligence developed on the trial by the evidence adduced." Sparkman v. Wabash Railroad, 191 Mo. App. loc. cit. 469, 177 S. W. 703, 704; Tracy v. Stock Yards Co., 87 Mo. App. loc. cit. 612; Simon v. Metropolitan Street Ry. Co. (Mo. App.) 213 S. W. 147; Hearon v. Lumber Co. (Mo. App.) 224 S. W. 67, loc. cit. 69; Hunter v. Schuchart (Mo. App.) 267 S. W. 411, loc. cit. 413; Unterlachner v. Wells (Mo. Sup.) 278 S. W. 79, loc. cit. 83; State ex rel. v. Daues, 314 Mo. 282, 284 S. W. 463, loc. cit. 464.

Defendant also complains of plaintiff's instruction No. 2, in that it permitted a finding for plaintiff if defendant negligently and carelessly swerved to the right side of Waterman avenue, causing his automobile to collide with said parked automobile. As to this feature, the plaintiff testified that, when she saw the east-bound car, defendant swung his car around real fast; that she...