Davis v. Roth

• Citation: 65 S.W.2d 172
• Decision Date: 05 December 1933
• Docket Number: No. 22614.,22614.
• Parties: DAVIS v. ROTH et al.
• Court: Court of Appeal of Missouri (US)

65 S.W.2d 172

DAVIS v. ROTH et al.

No. 22614.

St. Louis Court of Appeals. Missouri.

December 5, 1933.

Rehearing Denied December 19, 1933.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be published in State Reports."

Action by Billie Davis against Norma Roth and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

Leahy, Saunders & Walther, of St. Louis, for appellants.

Mark D. Eagleton, of St. Louis, for respondent.

BECKER, Presiding Judge.

Plaintiff recovered judgment against defendants in her action for damages for personal injuries alleged to have been sustained when the automobile of defendants collided with an automobile in which plaintiff was riding as a passenger. Defendants appeal.

Of the pleadings it is sufficient to state that plaintiff's petition charges seven acts of primary negligence against defendants, and in addition thereto charges a violation of the humanitarian doctrine. Defendants' answer was a general denial coupled with an affirmative plea that plaintiff and one Charles Le Fever, the driver of the automobile in which plaintiff was riding, were engaged in a joint enterprise, and that plaintiff's injuries were sustained as the result of the negligence of Le Fever, contributing thereto. The defense of joint enterprise, however, was abandoned by defendants at the trial and was not an issue submitted to the jury. Plaintiff submitted her case to the jury solely upon the humanitarian doctrine.

The testimony adduced on behalf of plaintiff as to the pertinent facts of the collision were in the main in direct conflict with that of the witnesses for defendants.

The testimony adduced on behalf of plaintiff may be summarized as follows: On February 16, 1930, between 4 and 4:30 o'clock in the afternoon, plaintiff, as a passenger, was riding in the back seat and on the left-hand side of an automobile being driven by Charles Le Fever east on Wells avenue in St. Louis county. As they approached the intersection of said street with Evergreen avenue, a north and south street, the automobile in which plaintiff was riding was being driven three feet from the south curb of Wells avenue at the rate of about twenty miles per hour. The automobile was slowed down on reaching the intersection and proceeded to cross at the speed of about ten or fifteen miles per hour. When the automobile in which plaintiff was riding had reached the west curb of Evergreen avenue, defendants' automobile was being driven south along Evergreen avenue approaching Wells avenue astraddle the black line marking the center, and was seventy-five to one hundred and fifty feet north of the north curb line of Wells avenue, driven at thirty to thirty-five miles per hour. There was a stop sign on the northwest corner of the intersection of the streets which required all south-bound traffic to stop for the intersection. Defendants' automobile did not stop or slow down at this stop sign, but continued at the speed mentioned until the time of the collision, which occurred at the moment that the rear part of the automobile in which plaintiff was riding had reached the center of the intersection; defendants' automobile striking the automobile in which plaintiff was riding at a point near the rear wheel thereof. According to plaintiff's witnesses, there was no traffic at or near the intersection at the time of the collision, and there was testimony to the effect that a car of the type which defendants were riding in, under the circumstances then existing, going at the rate of twenty-five to thirty miles per hour, could have been stopped within fifty to fifty-five feet.

The picture as presented by the witnesses for defendants is to this effect: The defendants are father and daughter. The automobile in which they were riding was owned by the father but on this occasion was being driven by the daughter Norma. Defendants' car, going south on Evergreen avenue, approached the intersection with Wells avenue on the right-hand side of the street near the right-hand curb, going at twenty to twenty-five miles per hour. Defendants' car came to a complete stop at the northwest corner of the intersection, at which point there is a clear view of traffic approaching from the west, and, having looked west up Wells avenue and seeing no car approaching, the defendant Norma Roth started the car and proceeded slowly across the intersection and had gained a speed of ten or twelve miles per hour when for the first time she saw the car in which plaintiff was riding "appear right in front" of her car, less than ten feet away. She applied her brakes, and the collision occurred; her car striking the car in which plaintiff was riding on the left-hand side near the front.

The first assignment of error urged here is directed to the argument of plaintiff's counsel to the jury. It is contended that upon the record before us the trial court erred, in that counsel for plaintiff was permitted to argue primary and antecedent negligence though plaintiff submitted her case to the jury solely upon an instruction upon the humanitarian doctrine. Upon a reading of the record we have come to the conclusion that the point is not well taken.

It appears that counsel for plaintiff in his argument to the jury, after adverting to the fact that at the northwest corner of the intersection of Wells and Evergreen avenues there was a large vacant lot, so that there was an unobstructed view as one approached Wells avenue on Evergreen avenue from the north, said that, in addition thereto, "there was a stop sign placed at the northwest corner for the purpose of —" At this point counsel for defendants objected to "any argument about a stop sign for this reason; because the issues in this case have been narrowed down to the humanitarian doctrine and any claim with respect to failure to stop at Wells avenue has, by the instructions of the court and by plaintiff's action in offering them, been abandoned, and therefore they are not properly in the case for argument at this time." To this objection counsel for plaintiff replied:

"Well, I am entitled to argue the evidence I haven't said a word that infers that she would be liable if she did not stop; but the jury has got a right to take any facts into consideration; whether it was there or not; it was a consideration that at least affects the credibility of the witnesses."

"The Court: Well, counsel may argue the case in his own way, keeping within the evidence in the case, but the jury will be bound by the court's instructions in returning the verdict."

After counsel for defendants had noted his exception to the ruling of the court, counsel for plaintiff continued:

"The evidence, I think, shows there was a stop sign and I think it is important if there was, because it is very important on the credibility of the witness Roth, because she says she stopped because she saw the stop sign. We, of course, say she didn't stop at all; do you believe that she did in fact stop; if she stopped as claimed she surely must have seen the plaintiff's car approaching.

"Counsel for Appellants: May the record show, your Honor, that my objection goes to this entire line of argument. I don't want to be placed in the position of continually interrupting.

"The Court: That is your duty to do that if you feel that it is error or should not be done, and don't hesitate on account of it being too delicate to make objections.

"Counsel for Appellants: Very well.

"Counsel for Respondent: The objection, I take it, is in the record; if it is good, it is good. Now, it is in for all it is worth.

"Counsel for Appellants: Yes. I didn't know just what you were going to do; if you are talking about that sign, I object to that.

"Counsel for Respondent: We offered that to give you gentlemen a picture showing the situation. I mention that merely in passing; I mention that as one of the surrounding circumstances involved in this collision, because I feel sure and I believe that you gentlemen do not believe that that girl on that occasion stopped and I do not believe that you think that she even knew the sign was there.

"It is very easy sitting in a rubber-tired automobile to be deceived as to the rate of speed that you are making, and especially is it true as you come rolling down a steep incline. She was very close according to the markings found on the street after the accident occurred by disinterested witnesses, to the center line of the street.

"Counsel for Appellants: I object to that argument where the car may have been driven north of Wells avenue; under the instructions of the court this case is going to the jury on the humanitarian doctrine alone.

"The Court: So far as the instructions to the jury is concerned, you are correct, but counsel may argue the case in his own way, the jury being bound entirely by the instructions in determining their verdict.

"Counsel for Appellants: Note an exception.

"Counsel for Respondent: Remember the testimony, gentlemen, there is no part of the testimony that is withdrawn from your consideration; his Honor has not taken and couldn't take away one scintilla part of the evidence, the evidence is for you in its entirety, and that is the evidence that I am quoting. I am not making this stuff up as I go along. I am quoting the evidence of witnesses who took the stand and who say that the tracks show that the machine was driven over in the middle of the street, and that is very important in this case under the doctrine submitted to you by his Honor because of the fact that it gave her enough opportunity to pass in back of this car if she wanted to instead of coming pell mell right down and hitting the rear end of it. I say that if she did stop there — if she did stop there, as she says she did, she then convicts herself of greater degree of negligence than if she told you the truth and said she did not stop, because if she told you the truth and said she did not stop you might feel sorry...