Danklef v. Armbruster

• Decision Date: 03 March 1936
• Docket Number: No. 23439.,23439.
• Citation: 91 S.W.2d 660
• Parties: DANKLEF v. ARMBRUSTER.
• Court: Missouri Court of Appeals

91 S.W.2d 660

DANKLEF v. ARMBRUSTER.

No. 23439.

St. Louis Court of Appeals. Missouri.

March 3, 1936.

Rehearing Denied March 24, 1936.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be published in State Reports."

Action by Mamie Danklef against Max Armbruster. Judgment for defendant, and plaintiff appeals.

Judgment reversed, and cause remanded.

See, also, Pabst v. Armbruster, 91 S.W. (2d) 652.

Eagleton, Waechter & Yost and Roberts P. Elam, all of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between a Ford coach she was driving and a delivery motortruck owned and driven by the defendant. The collision occurred at the intersection of Grand and Enright avenues. Grand avenue runs north and south, and Enright avenue runs east and west. There are double street car tracks on Grand avenue. The track to the east is used by northbound street cars, and the track to the west is used by southbound street cars. Each of the tracks is approximately five feet wide from rail to rail. The distance from the east rail of the northbound track to the west rail of the southbound track is approximately fifteen feet. The distance from the west rail of the southbound track to the west curb line of Grand avenue is seventeen feet. Enright avenue, west of Grand, is forty-four feet wide from curb to curb. There are double street car tracks in Enright avenue. The southbound Grand avenue street cars regularly stopped at the northwest corner of the intersection, and the northbound cars regularly stopped at the southeast corner. The sidewalk on the west side of Grand avenue north of Enright avenue is twelve feet wide.

The accident occurred on June 23, 1932, about 6:30 or 7 o'clock in the evening. It was a clear day, and the streets were dry.

At the time of the collision, defendant's motortruck, carrying a minor load, was traveling south on Grand, and plaintiff's automobile, having come north on Grand to the intersection, was making a left turn out of Grand into Enright.

Plaintiff in her petition, by way of specifications of negligence, alleges (1) that the defendant negligently operated his motortruck at an excessive and dangerous rate of speed; (2) that defendant negligently failed to sound or give any signal or warning of the approach of his motortruck; (3) that defendant negligently failed to stop, slacken the speed of, or turn or swerve his motortruck so as to avoid colliding with plaintiff's automobile; (4) that defendant negligently failed to have his motortruck under such control that it could be readily and reasonably stopped upon the first appearance of danger; (5) that defendant negligently swerved his motortruck so as to cause the collision; (6) that defendant negligently failed to discover plaintiff's automobile on the street; and (7) that defendant saw, or by the exercise of the highest degree of care could have seen, plaintiff's automobile in a position of imminent peril of being collided with by the motortruck in time for defendant thereafter by the exercise of the highest degree of care to have stopped said motortruck, slackened the speed thereof, swerved the same, or given a warning signal of its approach, and thus and thereby to have avoided the collision, but negligently failed to do so. The answer is a general denial coupled with a plea of contributory negligence. The reply is a general denial.

The trial, with a jury, resulted in a verdict and judgment for defendant, and plaintiff appeals.

Plaintiff submitted the case to the jury solely on the theory of negligence under the humanitarian rule.

Plaintiff assigns error here upon the giving of defendant's instruction No. 4, directing a verdict for defendant upon a finding that plaintiff was contributorily negligent. Defendant justifies the giving of the instruction on the sole grounds (1) that the evidence does not make out a case under the humanitarian rule; and (2) that the petition does not state a cause of action under that rule. He does not otherwise question the erroneous and prejudicial character of the instruction.

In view of the contention that the evidence does not make out a case under the humanitarian rule, it becomes necessary to set out the testimony in some detail.

Plaintiff testified, in substance, as follows: "I followed a street car north on Grand to the intersection of Grand and Enright. I was driving the automobile, and Mrs. Julia Pabst was riding in the front seat beside me. When I got up close to the intersection, the street car stopped there at the corner. My automobile was in back of the street car in the street car tracks when the street car came to a stop. After discharging or taking on passengers the street car started up north. After the street car had pulled away, I followed it up until I got to the westbound street car tracks on Enright Avenue; then I angled my automobile to make a left turn. I signalled my intention to turn by using my hand. I had to stop there for two automobiles that were going south on Grand on the pavement between the southbound street car track and the curb. When I stopped my automobile, the front end was over in the southbound street car track. After these two southbound automobiles had gone by I looked up and saw this truck coming south on Grand Avenue. At the time I started to leave the southbound street car track turning west into Enright Avenue, that truck was up about Vandeventer Place; it was 200 or 250 feet away from me at the time I pulled out and started west. After those two automobiles had gone by there was no other traffic coming south on Grand Avenue between Enright and Vandeventer Place except this truck. I then proceeded to start west on Enright. I just got to the crossing to go across on the west side of Grand Avenue at Enright when some people stepped off the curb in front of me. After I had stopped in the southbound car track I then started up the automobile to go west and I had to stop on account of these people over there by this west crossing. When I stopped on account of these people the front of my automobile was west of the west curb of Grand Avenue, but the back end was still east of the west curb of Grand Avenue. A collision occurred there. The right rear part of the automobile that I was operating was struck by the truck, and the automobile was turned over on the left side. At the time my automobile was stopped and immediately before it was struck, the front part of the automobile was on Enright over near the north side. It was on the north side of Enright. When I saw this truck coming about 250 feet away I did not sound my horn. When I had gone into Enright the back part of my automobile was east of the curb. When I stopped for those pedestrians to cross, I was on the north side of Enright. About the back wheel of my automobile was the only part that was east of the curb, and the rest of it was in Enright. The truck came right close to the curb and hit the back end of my automobile. Less than half of my car was east of the curb when the truck hit me. When I was coming north, I came north and turned and then went over west and stopped on the track to let these two automobiles go by, and then I looked up and saw the truck about 250 feet away coming south on the west side where the pavement is. It was not in the street car tracks. It was in the space between the tracks and the curb. In my opinion the truck being driven south on Grand Avenue was going about twenty-five or thirty miles an hour when I saw it. When I pulled away from where I had stopped out there in the southbound car track and proceeded from there over to the west side of Grand Avenue, I don't think I was going more than five miles an hour. I had stopped in the southbound car track to let those two cars go by. I made my next stop to let ...