Flach v. Ball
| Citation | 240 S.W. 465,209 Mo.App. 389 |
| Parties | MARIE FLACH, Respondent, v. PHILIP D. C. BALL, Appellant |
| Decision Date | 04 April 1922 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court or St. Louis County.--Hon. G. A Wurdeman, Judge.
AFFIRMED.
Judgment affirmed.
Bryan Williams & Cave for appellant.
(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence, for the reason that the plaintiff Marie Flach was herself guilty of contributory negligence as a matter of law. Keele v. Railroad, 258 Mo. 62; Lowry v. Smith, 199 S.W. 437; Ginter v. O'Donoghue, 179 S.W. 732. (2) The court erred in giving plaintiff's instruction No. 1 authorizing a finding against the defendant. This instruction thus clearly assumes that the southbound street car was stopped when Mrs Flach crossed over in front of it. This was a most material and a controverted fact. That the assumption in the instruction of such a material and controverted fact is error requires no authority. (3) The court erred in giving instruction No. 4 for the plaintiff directing a finding against the defendant. This accident happened in June, 1917. At that time the Laws of 1911, regulating motor vehicles, were still in effect. These laws contain no provision whatever requiring the sounding of signals under the conditions here (Laws 1911, p. 326). The ordinance of the city of St. Louis in effect at the time of the accident provided that "drivers of motor vehicles of all kinds, shall, when approaching crossings or in rounding curves or corners on public streets, sound their signals in such a way as to give a warning to other vehicles and pedestrians of their approach." The term "crossing," as used in the ordinance, means and can only be construed to mean a regular street crossing. Echmann v. Buchhirt, 128 Wis. 385. The place of the accident under all the evidence was not a street crossing. The question of whether the failure to sound a signal under the circumstances in this case was or was not under all the evidence negligence was one for the jury, and it was error on the part of the court to tell the jury, as a matter of law, that it was defendant's duty to sound a signal. (4) The court erred in refusing to allow the defendant to show that his witness Caldwell had, shortly after the accident, given testimony to the same effect as his testimony on this trial, after the plaintiff, on cross-examination, had attempted to impeach this witness by showing that he had made certain prior statements inconsistent with his testimony. Kelly v. Insurance Co., 192 Mo.App. 24; State v. Grant, 79 Mo. 33; State v. Whelehon, 102 Mo. 20; State v. Sharp, 183 Mo. 737; State v. Maggard, 250 Mo. 348. (5) According to the testimony of the witness Mummert, he was at no time in a position to, and at no time had opportunity to observe the speed of the defendant's car. His conclusion as to its speed was based solely on his observation from a point 150 feet from the accident, of the effect of the blow of the automobile upon Mrs. Flach. He was not qualified on his own testimony to testify as to the speed of the car. The court, therefore, erred in permitting him to testify as to the car's speed and in refusing to strike out that portion of his testimony. Stotler v. Railroad, 200 Mo. 107, 124 and 128; Campbell v. Railroad, 175 Mo. 161, 177.
George E. Mix, Abbott, Fauntleroy, Cullen & Edwards and Curlee & Hay for respondent.
(1) Plaintiff was not guilty of negligence as a matter of law. Carradine v. Ford, 195 Mo.App. 684; Cool v. Peterson, 189 Mo.App. 718; Ginter v. O'Donoghue, 179 S.W. 734; Bongner v. Ziegenheim, 165 Mo.App. 328; Hodges v. Chambers, 171 Mo.App. 563; Moffatt v. Link, 229 S.W. 837; Meenach v. Crawford, 187 S.W. 879; Arseneau v. Sweet, 106 Minn. 257; Winckowski v. Dodge, 183 Mich. 303, 149 N.W. 106. (2) Plaintiff's instruction number 1 does not assume that the car had stopped at the regular stopping place. But if the court had expressly told the jury that it had so stopped, it would have done only what every witness in the case had done. The fact was not disputed by a single witness. It is admitted in defendant's statement and brief. The issue was whether the car which had stopped at the regular stopping place had resumed motion before defendant started his machine. The instruction plainly and properly tenders that issue. Since the fact, alleged to be assumed, was not only not controverted, but was admitted by defendant on the trial, and is admitted in defendant's brief in this court it would not have been error to assume it in the instruction. Huckshold v. United Rys. Co. of St. Louis, 234 S.W. 1072; Deschner v. Railway, 200 Mo. 310; Davidson v. Transit Co., 211 Mo. 320; Phelps v. Zinc Co., 218 Mo. 572; Orcutt v. Century Bldg. Co., 214 Mo. 35; Dee v. Nachbar, 207 Mo. 393; Small v. Kansas City, 185 Mo. 291. (3) Instruction number 4 told the jury what, both under the statute and ordinances and under the common law unaided by statute or ordinance, it was the duty of the driver of an automobile to do. McFern v. Gardner, 121 Mo.App. 1; Johnson v. Traction Co., 176 Mo.App. 174; Ostermeier v. Implement Co., 255 Mo. 129; Eisenman v. Griffith, 181 Mo.App. 187; Laws 1911, p. 32 of sec. 2; Laws 1911, page 330, subdivision (9); Arenson v. Ricker, 185 Mo.App. 531; Revised Code City of St. Louis, 1912, Sec. 1338. (4) The statements made by witness Caldwell in the criminal trial were properly excluded. They were made after the contradictory statements were signed and after he had been seen by a representative of the defendant. They were made under the very same circumstances and when subject to the very same influences as when made in the trial of the instant case. Under all the authorities, such statements were inadmissible. All the cases hold that to render evidence of similar statements admissible it must be shown that the statements were made prior to the making of the contradictory statements and under circumstances when no moral influence exists to color or misrepresent the facts. Kelley v. Insurance Co., 192 Mo.App. 24; State v. Sharp, 183 Mo. 737; State v. Maggard, 250 Mo. 335; State v. Caddy, 15 S.D. 167, McCord v. State, 83 Ga. 521, 8 Am. Crim. Rep. 636; Sweeney v. Sweeney, 121 Ga. 293; Gates v. People, 14 Ill. 433; Stolp v. Blair, 68 Ill. 541; Waller v. People, 209 Ill. 284, 70 N.E. 681; Chicago City R. Co. v. Matthieson, 212 Ill. 292, 72 N.E. 443; Rhutasel v. Stephens, 68 Iowa 627; State v. Petty, 21 Kan. 54. (5) (a) Harden J. Mummert, a mechanical engineer, whose work had to do with automobiles and with determining movements from the observation of effects produced by them, and who had owned and run a machine since 1904, saw the machine from the rear, saw the plaintiff struck and hurled over the machine and to the street. He testified that he did, from what he saw, form an opinion as to the speed of the car. He was manifestly qualified, well qualified, to give an opinion. State v. Watson, 216 Mo. 420; Aston v. St. Louis Transit Co., 105 Mo.App. 226; Hough v. Automobile Co., 146 Mo.App. 58; Ottofy v. Trust Co., 197 Mo.App. 473; Lorenzen v. Railroad, 249 Mo. 182; Miller v. Jenness, 34 L.R.A. (N. S.) 182; Dugan v. Arthurs, 34 L.R.A. (N. S.) 778; Harnau v. Haight, 189 Mich. 600. (b) But Mummert's testimony, whether admissible or not, was harmless. The only issue on speed submitted to the jury was whether the automobile was running in excess of ten miles per hour.
--This suit was brought by the plaintiff to recover damages for personal injuries sustained by her, alleged to have been negligently caused by being struck by defendant's automobile, while she was walking across Hamilton avenue, in the city of St. Louis, near its intersection with the Hodiamont street car tracks.
The petition charged negligence in operating said automobile in violation of the ordinances of the city of St. Louis in this: (a) Operating said automobile at a rate of speed in excess of ten (10) miles per hour. (b) Failure to give any signal by bell, horn or otherwise, to warn persons approaching or crossing over the intersection or crossing on Hamilton avenue, of the approach of said automobile and (c) failure to stop such automobile and remain at the rear of a southbound Hamilton avenue street car, which was at the time standing to take on and let off passengers on the north side of the Hodiamont street car tracks.
The petition further charged the defendant with failure to exercise due care to keep a lookout and a vigilant watch for persons upon said street approaching the aforesaid intersection thereof, and failure to stop the automobile or slacken its speed or change its course after he saw, or by the exercise of due care could have seen, the plaintiff crossing the street and in dangerous proximity to said automobile.
The answer was a general denial coupled with a plea of contributory negligence on the part of plaintiff as follows:
(1) Failure, before crossing Hamilton avenue, to look and listen for approaching vehicles.
(2) Running in front of a southbound Hamilton avenue street car when her view was so obstructed that she could not see whether any vehicle was approaching, into that portion of Hamilton avenue to the west of said car, and when the drivers of any such vehicle could not see her approaching; and running immediately in front of the defendant's automobile and so close thereto that it was impossible to stop said automobile before striking her.
The reply put in issue the new matter set up in the answer.
At a trial a jury awarded plaintiff a verdict for four thousand dollars; from a judgment on that verdict defendant appeals.
The facts disclosed by the evidence are: Hamilton avenue and the...
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