Emman v. Himeles

• Decision Date: 05 July 1922
• Docket Number: No. 17150.,17150.
• Citation: 243 S.W. 241
• Parties: EHMAN v. HIMELES.
• Court: Missouri Court of Appeals

243 S.W. 241

EHMAN v.HIMELES.

No. 17150.

St. Louis Court of Appeals. Missouri.

July 5, 1922.

Rehearing Denied July 11, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by Walter Ehman against Samuel Himeles to recover damages to person and property resulting from an automobile collision.Judgment for plaintiff in the circuit court on appeal from a justice of the peace, and defendant appeals.Affirmed."

Albert E. Hausman, of St. Louis, for appellant.

Earl M. Pirkey and CharlesF. 3allak, both of St. Louis, for respondent.

BRUFRE, C.

This is an action to recover damages to person and property alleged to have been caused by the defendant's automobile, driven by the defendant, striking the automobile driven by the plaintiff.

The suit was begun in a justice court and appealed to the circuit court, city of St. Louis, where it was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff for the sum of $500, and defendant has appealed.

The collision occurred at 4 p. m. on October 29, 1917, at the intersection of Carter avenue and Prairie avenue, two public streets in the city of St Louis.Carter runs east and west, and Prairie runs north and south.Both streets are 36 feet wide between curb lines, and each has a sidewalk 13 feet wide between the curb and building line.

The facts as testified to by plaintiff are as follows;

He was driving his automobile, at a speed of 6 miles per hour, west on the right side of Carter avenue and about 8 feet south of the north curb line of Carter.As he approached Prairie avenue, and had reached the point where be could see by the building line, he looked north and saw defendant's machine coming south about 200 feet from Carter and about 10 feet east of the west curb of Prairie avenue.He could not tell at that time how fast said machine was running, but knew that the city ordinance restricted the speed of automobiles to 8 miles per hour in the congested districts and to 10 miles per hour in other parts of the city, and that the right of way ordinance of the city gave east and west bound vehicles the right of way.When the front of his machine was about the middle of Prairie avenue, he again looked north, and saw defendant's machine about 50 feet to the north, coming at a rate of about 25 miles per hour.He realized that he could not avoid the machine by continuing north or by bringing his car to a stop.He knew it would take him 10 feet to stop and to do so would place his car directly in the path of the oncoming machine, so he turned and continued south.Defendant did not check the speed of his machine, but continued south, struck plaintiff's car on the right side it just back of the front wheel, turned it turtle on top of plaintiff, and then ran 65 feet and struck a tree on the east side of Prairie avenue.

Disinterested witnesses corroborated plaintiff's account of the accident.It was also shown that the repairs to plaintiff's automobile, caused by the collision, amounted to $71.34.

Regarding the injury to plaintiff's person, caused by the accident, the medical testimony showed that his back was wrenched, that there was a bruise over his right hip, and that he received some minor injury to his face.His testimony showed that his back was sprained and sore and that his hip was sore.He testified that he resumed his usual work the day after the accident, but that his injuries hurt him for several months after he was hurt, and that he was not entirely free from pain at the time of the trial two years after the injury.There was no attempt made to contradict this evidence.

The defendant testified that he was driving his car, at a speed of 16 miles per hour, south on Prairie avenue and about 4 or 0 feet east of the west curb line of Prairie; that when the front of his car reached the curb line of Carter avenue he saw plaintiff's machine at about the building line of Prairie avenue running west at a speed of 25 miles per hour; that he continued with undiminished speed across Carter avenue, without swerving out of his course, and had passed the center of Carter avenue when he felt a contact on the left side of his car; that at that moment he turned around and simultaneously put his clutch in neutral, which caused his car to run by the curbing on the east side of Prairie avenue and hit a tree.He further testified that he could have stopped his car in 8 feet.At the trial in the circuit courthedefendant introduced no evidence save his own testimony.

Defendant insists that the judgment herein should be reversed on the ground that the evidence discloses that plaintiff failed to exercise ordinary care to avoid the collision; that because plaintiff made no effort to stop his car, after he saw defendant's automobile approaching at a high and dangerous speed, but turned his car to the south, he is guilty of contributory negligence as a matter of law.

We cannot say that as a matter of law plaintiff's failure to stop his automobile, under the facts and circumstances disclosed by the evidence, precludes his right to recover.

The evidence showed that defendant's machine was approaching Carter avenue at a high and dangerous rate of speed; that it continued with unabated speed over Carter avenue; that when plaintiff realized the rate of speed at which the car was approaching he was in a position where it would have been impossible for him to avoid a collision by stopping his car, because to do so would have brought his car directly in the path of defendant's machine.He therefore turned his car to the south hoping in that way to avoid the collision.

The question whether or not plaintiff failed to use ordinary care to stop or check his automobile after he saw, or by ordinary care could have seen, that a collision was imminent, and that such failure directly...