Felts v. Spesia

• Decision Date: 20 June 1933
• Docket Number: No. 22299.,22299.
• Citation: 61 S.W.2d 402
• Court: Missouri Court of Appeals
• Parties: FELTS v. SPESIA.

61 S.W.2d 402

FELTS v. SPESIA.

No. 22299.

St. Louis Court of Appeals. Missouri.

June 20, 1933.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be published in State Reports."

Action by Marie Huegel Felts against Louis J. Spesia. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg, both of St. Louis, for appellant.

Dubinsky & Duggan, of St. Louis, for respondent.

McCULLEN, Judge.

This is an action for damages for personal injuries alleged to have been sustained by respondent, hereinafter called plaintiff, while she was a passenger in an automobile owned and driven by appellant, hereinafter called defendant. A trial before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $6,000. Defendant appeals.

The case was submitted to the jury on behalf of plaintiff on two assignments of negligence. They were, first, negligence based upon high and excessive speed; and, second, negligence in failing to keep as near the right-hand side of the highway as practicable. The answer of defendant was a general denial.

On the evening of the 8th of April, 1930, plaintiff was a guest of defendant and a passenger in his automobile. Herbert Snyder and Mrs. Loyola Braum also were guests and passengers of defendant in the same automobile, which was a Pontiac coupé. The party of four went to Nanking Inn, in the city of St. Louis, where they had something to eat, after which they went for a drive, going as far as Imperial, in Jefferson county, Mo. They started back to St. Louis on the Lemay Ferry road, a public highway. Defendant was driving, and plaintiff was seated next to him on his right. Next to plaintiff on the right was Herbert Snyder. Mrs. Loyola Braum was seated on Snyder's lap. They proceeded northwardly along the Lemay Ferry road, and, when they had reached a point about 100 feet south of the Telegraph road, in St. Louis county, the front end of the Pontiac coupé collided with the rear end of a large truck which was moving along the Lemay Ferry road in the same direction.

Plaintiff testified that she first saw the truck when it was about two blocks distant, and that she continued to see it until the time of the collision. She told defendant that she did not like to drive fast. She said that he was then driving at a rate of about 40 or 45 miles an hour; that, after she had told him she did not like to drive fast, he continued to drive "very, very fast"; that he did not slow down; that he said he had never had any accidents and was quite sure he would not have any at that time. Plaintiff further testified that the truck, at the time of the collision, was practically straddling the middle of the road, and that defendant's automobile was to the west of the middle line of the road; that the truck had a tail light on the rear which plaintiff saw when they were about 150 feet from it; that Lemay Ferry road at the point where the collision occurred had been widened and was wide enough to accommodate four lines or lanes of traffic; that there were two lanes to the east of the middle line of the road and two lanes to the west thereof; that there were no cars parked on the right lane, and there was no traffic moving in the lane to the right of the lane in which defendant was driving his car; that the truck was the only traffic on the road that plaintiff could see. She said that defendant made no effort to swerve his car either to the right or left preceding the collision.

Plaintiff's testimony as to the main facts was corroborated by the testimony of Mrs. Loyola Braum, who also was injured in the accident.

Defendant testified that he was driving his automobile in the lane to the right of and next to the middle line of the road; that he was going about 25 to 30 miles an hour; that he did not see the truck until he was within 25 or 30 feet of it; that he intended to pass the truck by going to the left thereof, but, as he swung his automobile out to the left, he saw traffic coming south, and, in order to avoid a head-on collision with such traffic, he tried to turn his automobile back to the right, but when he swerved his car to the right it struck the rear end of the truck. He said that there was no tail light on the truck.

The testimony of Herbert Snyder was substantially the same as that of defendant.

Defendant contends that the court erred in giving plaintiff's instruction No. 2, which, in substance, told the jury that, if defendant failed to keep as close to the right-hand side of the highway as practicable, plaintiff was entitled to recover. In support of this contention counsel cite the case of Plater v. Construction Co., 223 Mo. App. 650, 17 S.W.(2d) 658. In that case plaintiff therein sued Kansas City and a construction company for injuries she received when an automobile in which she was riding with her husband collided with an obstruction in a public street. The evidence showed that there was a space on the right-hand side of the street which was unobstructed where the car in which plaintiff was riding could have been driven and thus avoided the obstruction. Under such evidence defendants contended that plaintiff was guilty of negligence as a matter of law. Answering this contention, the court held that plaintiff was not negligent as a matter of law; that the question of plaintiff's negligence was for the jury to determine under the facts and circumstances in evidence in that case.

Defendant contends that the statute, on which instruction No. 2 is based, does not apply to a four-lane highway such as shown in this case. The first paragraph of section 7777, R. S. Mo. 1929 (Mo. St. Ann. § 7777), provides as follows: "Every person operating or driving a vehicle upon the highways of this state shall observe and comply with the following rules of the road."

Subdivision (b) of the above mentioned statute provides as follows: "(b) All vehicles when in operation shall be kept as close to the right-hand side of the highway as practicable."

The language of the two paragraphs quoted is plain. The rules laid down therein apply to all vehicles in operation upon all the highways of this state, and every person operating or driving a vehicle on the highways of the state is required to comply with them. Subdivision (e) of the above-mentioned statute, which provides rules for slowing down, stopping, and turning where double lines of vehicles are possible, applies only to municipalities and to highways where "vehicles are obliged to move in one direction only." It is not applicable under the evidence in this case. We are unable to find anything in the Plater Case, or in any other case, which would warrant us in holding erroneous the instruction in the case at bar.

Defendant next complains of the refusal of the court to give instruction F, which told the jury that there was no evidence that defendant was negligent in failing to keep as close...