Disano v. Hall

• Decision Date: 05 March 1929
• Docket Number: No. 20409.,20409.
• Parties: DISANO v. HALL.
• Court: Missouri Court of Appeals

14 S.W.2d 483

DISANO v. HALL.

No. 20409.

St. Louis Court of Appeals. Missouri.

March 5, 1929.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Joe Disano against M. B. Hall. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

L. M. Hall, of St. Louis, and Robert W. McElhinney, of Clayton, for appellant.

S. E. Eaken, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages resulting from a collision of defendant's Packard sedan with plaintiff's Chevrolet coach, which occurred at the intersection of Big Bend road and Zephyr avenue, in the city of Maplewood, about 10 o'clock on the morning of November 21, 1926. The trial, with a jury, resulted in a judgment in favor of plaintiff for $500, and defendant appeals.

Defendant insists here that the plaintiff failed to make out a case for the jury, and that therefore the judgment should be reversed, without remanding the cause.

The petition charges that at the time of the collision the defendant was operating his car in excess of 18 miles per hour, in violation of an ordinance of the city of Maplewood; that he negligently failed to keep and drive his car on the right side of the street, but drove the same on the left side; and that he failed to use ordinary care to avoid striking plaintiff's car, or to use ordinary care to bring his car to a stop, when he saw or by the use of ordinary care would have seen plaintiff in a position of danger; that as a direct result of defendant's negligence, plaintiff's wife, who was riding in the car with plaintiff at the time of the collision, was injured, and plaintiff's car was damaged; and prays judgment for damages on account of medical and surgical attention, hospital bills, nursing, and drugs and medicines, for his wife, and for loss of the services of his wife, and for damages to his car, in the sum of $1,040.16.

The answer is a general denial, coupled with a plea of contributory negligence.

The cause was submitted to the jury by both plaintiff and defendant on substantially all the issues made by the pleadings. No demurrer, or instruction in the nature of a demurrer, to the evidence, was offered, and no withdrawal instructions were requested. In this state of the record, the defendant cannot be heard to complain here that the evidence was insufficient to take the case to the jury.

Big Bend road, which is 38 feet wide from curb to curb, runs north and south. Zephyr avenue, which is 24 feet wide from curb to curb, intersects Big Bend road on the east, but does not extend west of Big Bend road. Plaintiff's residence is on the west side of Big Bend road. The driveway to his garage is north of his residence. The driveway is about 40 feet north of Zephyr avenue.

Plaintiff testified that he backed his car out of the driveway into Big Bend road, backing it north along the west curb of the road; that he sat in his car and looked back; that he could see back as far as three blocks, and saw no car; that he drove south on the west side of Big Bend road to Zephyr avenue, and undertook to make a left turn into Zephyr avenue; that when the collision occurred the front of his automobile was in Zephyr avenue; that when he backed his machine into Big Bend road he looked back and there was nobody coming from anywhere, north or south; that when he started to make his turn he stuck his left hand out and made his turn; that when he started to make his turn, he was on the west side of the road opposite the entrance to Zephyr avenue; that when he got to the east side of Big Bend road at the entrance to Zephyr avenue, his car was struck by the defendant's car; that he asked defendant where he came from so fast; that he looked down the street when he started from the curb south on Big Bend road; that he looked around and looked north; that he did not see any car until his car was hit; that in going from the west curb of Big Bend road to the point of collision, he traveled 5 to 10 miles per hour; that he made his turn in the middle of the street; that he could not make a square turn, but had to make a left turn; that there was snow on the ground; that on the east side of the road the snow was melted; that where he was there was no melted snow; that there was about 4 or 5 inches there; that the east side was clear; that the collision occurred at the southeast corner of Zephyr and Big Bend; that his car was 5 feet from the curb when the collision occurred; that it was pushed by the impact against the curb; that he extended his left hand when he left the curb on the west side of the street; that his car was a closed car, and his left window was open.

Arthur Dorlac testified that...