Erxleben v. Kaster
| Decision Date | 05 November 1929 |
| Docket Number | No. 20627.,20627. |
| Parties | ERXLEBEN v. KASTER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.
"Not to be officially published."
Action by Marie Erxleben, by Charles Erxleben, her next friend, against William F. Kaster. Judgment for plaintiff, and defendant appeals. Reversed, and remanded with directions to enter a new judgment for plaintiff in a smaller sum, if plaintiff remits the difference, and otherwise for a new trial.
P. S. Terry, of Festus, for appellant.
Hay & Flanagan, of St. Louis, for respondent.
Plaintiff, a girl nine years of age, was injured by being struck by an automobile of the defendant on May 1, 1926. A verdict and judgment was returned in her favor for $5,000, and an appeal therefrom was duly perfected by the defendant.
The defendant assigns a large number of errors. He alleges, first, that the court erred in permitting plaintiff, on the voir dire examination, to ask the jurors if they were interested in the Federal Automobile Insurance Association. The record discloses that the attorney for plaintiff asked the attorney for the defendant, out of the hearing of the jury, whether or not the Federal Automobile Insurance Association was interested in the defense of the case, and the attorney for the defendant replied that the company was carrying a policy of insurance on the automobile involved. Thereupon the attorney for the plaintiff asked the jury whether any of the members of the panel was interested in that insurance company. This was the extent of the examination. This question has been so often considered by the courts and the right to make the inquiry is so firmly established that further consideration is unnecessary. Foulks v. Lehman (Mo. App.) 17 S.W.(2d) 994, and cases cited.
The defendant also complains that the court erred in refusing to give the instruction in the nature of a demurrer offered by the defendant at the close of the plaintiff's case and again at the close of the whole case. This necessitates a statement of the evidence which was offered. Since the defendant did not stand upon his demurrer at the close of the plaintiff's case, but put in his own evidence, the question as to whether or not a case was made for the jury must be determined in the light of all the evidence introduced by both parties (Larkin v. Wells [Mo. App.] 278 S. W. loc. cit. 1088; Smiley v. Jessup [Mo. App.] 282 S. W. loc. cit. 111), and we must regard the testimony for plaintiff as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason and the defendant's evidence must be taken as false where it is contradicted by that of plaintiff. Crowley v. St. Louis & S. F. Ry. Co. (Mo. App.) 18 S.W.(2d) loc. cit. 543.
The facts show that the accident occurred at the intersection of Michigan and Koeln avenues in the city of St. Louis. Michigan avenue is a north and south street about 45 feet wide, and Koeln avenue is an east and west street about 30 feet wide; both streets being paved with brick. According to the evidence introduced by plaintiff, she and her sister had left the north curb of Koeln avenue and were proceeding to the south curb on the regular cross walk when they were struck by the defendant's automobile about 5 feet south of the north curb. Plaintiff's evidence further shows that the defendant was proceeding northwardly on Michigan avenue and turned east in Koeln avenue about the center of the intersection at a rate of speed of 25 to 30 miles per hour, and that his machine stopped on the north side of Koeln avenue about 40 or 50 feet east of the point where the children were struck. The plaintiff's evidence also discloses that the defendant did not sound his horn, and that immediately after the accident he asserted to the mother of the child that the children had stepped from behind a street car; that with the car defendant drove he ought to have been able to stop it at the rate of a mile to the foot and that, if defendant was driving at 15 miles per hour, he should have been able to stop in 10 feet; that the traffic at the intersection is heavy.
The defendant's evidence was to the effect that the defendant was driving north, close to the east curb on Michigan avenue, between a truck and the east curb, intending to go beyond Koeln avenue, when the two children suddenly appeared from the rear of a moving van which had come from the west on Koeln avenue and had turned south on Michigan; that defendant sounded his horn and immediately swerved his car to the right into Koeln avenue, but was unable to avoid striking the children; that the children ran in front of defendant's machine, instead of standing still and permitting the automobile to pass; that the defendant had been traveling at the rate of probably 25 miles per hour but slowed down to 18 or 20 miles; that he did not go over 25 or 30 feet after he saw the children, and he might not have gone over 10.
We think the foregoing recital of the facts is sufficient to show that the court was correct in declining to grant the instructions requested in the nature of demurrers to the evidence.
The defendant next objects to instruction No. 1 given at the instance of plaintiff, first, because defendant testified he intended to go north on Michigan avenue and veered to the right at Koeln avenue to avoid hitting plaintiff; second, that the instruction was a comment on the evidence; and, third, that there was no evidence to sustain the instruction. We are of opinion that the instruction was a proper one. It instructed the jury, among other things, that: "If you further find that the defendant drove his automobile northwardly on said Michigan avenue and turned to the right at its intersection with said Koeln avenue, and if you further find that in making said turn, if any, the defendant failed to keep to the right of the center of such intersection, and that such failure, if any, constituted negligence on the part of defendant and as a direct result thereof, if you so find the facts, the plaintiff was struck," etc. It is true that the instruction as given did not refer to the defendant's contention that it had been his intention to proceed on north of Koeln avenue, when he discovered the children in the intersection and turned east into Koeln avenue to avoid striking them. The plaintiff's evidence, however, was that the children were crossing from the north curb to the south curb of Koeln avenue and, therefore, according to plaintiff's evidence, they could not have been struck, except by the turning of the automobile into Koeln avenue, and, if the defendant thus turned his automobile to the right into Koeln avenue, it was his duty, under the provisions of the Motor Vehicles Act () to keep to the right of the center of the intersection. The jury was told that, if they found the facts according to plaintiff's theory, they could return a verdict in her favor. This necessarily carried with it the converse of the proposition as much so as if the latter had also been stated, and if defendant in argument had been able to convince the jury of the correctness of defendant's theory, the verdict would no doubt have been otherwise. And, so far as the record discloses, the defendant was content to thus rest the matter, because he does not seem to have asked any instruction presenting his theory of the case. Since there was ample evidence to support the plaintiff's instruction as given, and since the defendant requested no instruction submitting his theory, he is not in a position to assert error now to the omission to instruct upon his theory. Gordon v. Park, 219 Mo. loc. cit. 610, 117 S. W. 1163; Quinn v. Van Raalte, 276 Mo. 71, 205 S. W. loc. cit. 68.
Neither is the instruction a comment on the evidence as defendant contends, in, to wit, that it tells the jury that the failure to turn to the right after crossing the center of Koeln avenue was negligence. The instruction clearly told the jury that, if they found defendant turned to the right at the intersection, and further found that defendant failed to keep to the right of the center of the intersection, and that such failure, if any, constituted negligence, and as a result thereof plaintiff was hurt, then she might recover. The court did not advise the jury that defendant's failure to keep to the right was negligence, but required the jury to determine whether he was negligent in that respect.
There was also ample evidence to sustain the instruction as the statement of facts discloses.
Appellant also contends that instruction No. 3 given at the instance of the plaintiff on the humanitarian rule is erroneous, in that it contained the statement that if the jury found "that plaintiff was in a position or coming into a position of imminent peril." No other criticism is made of the instruction and none could be made, because the instruction contained all of the elements essential to a recovery under the rule. The defendant says, however, that he was not bound to watch...
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