Evans v. Klusmeyer

• Decision Date: 03 December 1923
• Docket Number: No. 23095.,23095.
• Parties: EVANS v. KLUSMEYER.
• Court: Missouri Supreme Court

256 S.W. 1036

301 Mo. 352

EVANS v. KLUSMEYER.

No. 23095.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Bessie M. Evans against E. A. Klusmeyer. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Charles E. Rendlen, of Hannibal, and John A. Hope, of St. Louis, for appellant. Taylor R. Young and Marsalek & Stahlhuth, all of St. Louis, for respondent.

WALKER, J.

This suit was brought by appellant in the circuit court of the city of St. Louis for injuries received by her in being run down by an automobile driven by the respondent. Upon a trial there was a judgment for the respondent, from which an appeal was perfected to this court.

On the evening of November 27, 1918, the appellant, in company with her mother and an uncle, were about to cross to the north side of Delmar avenue. Before doing so, while yet on the sidewalk, they looked up and down the avenue, and listened for the approach of vehicles. Neither seeing or hearing anything to indicate that the street was not clear, they started to cross it. When they were about half way across, the appellant was run down and struck by respondent's automobile, which it is admitted by respondent was running at the speed of 20 miles an hour. It is a business section of the city at the point where the accident occurred, which was at the intersection of Delmar and De Baliviere avenues, and the speed of automobiles, as in other business sections, is there limited by ordinance to 8 miles per hour. The respondent, testifying in an argumentative manner, states that when he first saw the appellant and those with her they were on the sidewalk on the east side of De Baliviere, and he was about 35 feet from them.

"They seemed undecided what to do, and as.

I came along they were just at the edge of the car, and all of a sudden they were right in front of the car, and that was all there was to it. They had umbrellas, and I don't think they saw me coming. As I was approaching them I saw them step off of the curb. They stepped 3 or 4 feet from the curb and looked and then cut across. I kept on going at a speed of not greater than 20 miles an hour. I had my lights burning, and blew my horn when I saw them. The car could have been stopped in 8 or 10 feet. My car stopped as soon as I hit them, if not, it would have run over any of them or all of them. I threw on the emergency brake when I struck them, and stopped the car within, I should judge, about 10 feet. When I stopped I was fully 40 feet from where I first saw Miss Evans and her party, maybe a foot or two more; one cannot tell offhand."

The testimony for the appellant was to the effect that she and her party were waiting on the sidewalk for a street car to pass, which had stopped to take air, and they attempted to cross the street, and were struck by the respondent's car; that they did not see or hear it coming; that no horn was blown, and that the car had no headlights.

Appellant's injuries are thus summarized by her physician:

"I saw her shortly after she was removed to the hospital. She was lying on a cot with her head bandaged. Her hair was badly matted with blood on the right side, and two wisps had been torn from her scalp. One of these left a wound about the size of a silver dollar, and the other the size of a quarter. The lower part of her left car had been torn loose. Two fingers of her right hand had the appearance of having been doubled back. She was bruised black and blue on her leg, hip, and one side of her body, and two of her ribs were displaced. The injuries to the ribs were on her left side, and those to the leg and hip on her right side. One of her arms was badly sprained. The principal feature of her injury however was a nervous shock. This condition still exists. I continued to treat her until two months ago, at which time her nervous condition still existed. In all probability her injuries are permanent."

I. The accident occurred in a business section of the city, and the automobile speed limit of 8 miles per hour was applicable. The ordinance prescribing this limit was pleaded, and its violation by the respondent was alleged and proved. This constituted negligence per se. An instruction was asked by the appellant predicated on this ordinance. It is as follows:

"4. You are further instructed that by ordinance of the city of St. Louis, in force and effect at the time of the accident in question, it was unlawful to move or propel an automobile at a greater rate of speed than 8 miles per hour in the business portions of said city. The term `business portion of the city,' as used in this instruction, means a part of the city principally built up with structures devoted to business. And if you find from the evidence that defendant was running the automobile in question eastwardly on Delmar avenue approaching the intersection thereof with De Baliviere avenue, and that said automobile collided with plaintiff and injured her at or near the intersection of said avenues, and that, as said automobile was approaching said intersection, and as it collided with plaintiff, it was being run by defendant at a greater rate of speed than 8 miles per hour, and if you further find from the evidence that the part of said Delmar avenue on which defendant was thus approaching said intersection and the place where said avenues intersect each other was in a business portion of said city as above defined, then such running of said automobile at a speed in excess of 8 miles per hour was negligence on his part. And if you further find from the evidence that such negligence directly contributed to cause plaintiff's injuries, if you find she was injured, and if you further find that she was exercising ordinary care for her own safety, your verdict must be for the plaintiff."

This instruction correctly declared the law. In addition to defining the terms of the ordinance, it required the jury to find the evidentiary facts stated, from which, if found, the necessary inference follows that the negligence shown was the cause of the injury; or, concretely stated, to authorize a verdict for the appellant, the jury was required to find that the respondent negligently exceeded the speed limit of 8 miles per hour, and that the appellant was at the time in the exercise of ordinary care for her own safety, and that the respondent directly contributed to or was the approximate cause of the appellant's injuries. Varley v. Columbia Taxicab Co. (Mo.) 240 S. W. loc. cit. 221; Bluedorn v. Mo. Pac. Ry., 121 Mo. 258, 25 S. W. 943; Kelley v. Railroad, 75 Mo. 138. The phrase "directly contributed to," as used in the instruction, cannot be reasonably construed as other than synonymous with proximate cause, by which we mean such a cause as operated to produce a particular consequence without the intervention of an independent cause, in the absence of which the injuries would not have been inflicted. Holwerson v. Railroad, 157 Mo. 231, 57 S. W. 770, 50 L. R. A. 850; Glenn v. Railroad, 167 Mo. App. loc. cit. 116, 150 S. W. 1092. Thus construed, the phraseology of the instruction is not vague or misleading, and, having correctly declared the law under the evidence, it should have been given. General instruction No. 1, given at the request of the appellant, hypothesizing other facts than those in regard to the speed ordinance and the respondent's duty concerning same, did not deprive the appellant of the right to instruction No. 4.

II. The appellant contends that she was entitled under her pleadings and the proof to have her right to recover submitted under the humanitarian rule. The respondent on cross-examination shows that after he saw appellant in a position of peril he could have stopped his car in time to have avoided injuring her. Ere says in effect that when he saw the appellant he had about reached the middle of the street crossing, and that appellant was distant about 35 feet; that he could have stopped his car, if then going at the rate of 20 miles an hour, within 10 or 12 feet, and in a less space if he was traveling at a slower speed.

Not only from his testimony, but from that of the appellant and others who testified in her behalf, is it shown that when she started across Delmar there was no indication of the approach of a vehicle. Under this testimony the appellant was entitled to have her right to recover submitted to the jury under the humanitarian doctrine. Raymen v. Galvin (Mo. Sup.) 229 S. W. 747.

The appellant requested that an instruction invoking that doctrine, which was drawn in conformity with our rule, as then announced, be given, and it...