Flach v. Ball.
| Decision Date | 04 April 1922 |
| Docket Number | No. 16989.,16989. |
| Citation | 240 S.W. 469 |
| Parties | FLACH v. BALL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.
"Not to be officially published."
Action by Charles W. Flach against Philip De C. Ball. Judgment for plaintiff, and defendant appeals. Affirmed.
Bryan, Williams & Cave, of St. Louis, for appellant.
George E. Mix, Abbott, Fauntleroy, Cullen & Edwards, and Curlee & Hay, of St. Louis, for respondent.
Plaintiff is the husband of Marie Flach, and sues to recover damages to him arising out of injuries received by his wife, resulting from 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.
This action is a companion case to cause No. 16988, Marie Flach, Respondent, v. Philip D. C. Ball, 240 S. W. 465, this day decided by this court. That suit grew out of the same occurrence on which this suit is based; and the negligence on the part of the defendant charged in the petition, the allegations of the answer and reply, the evidence introduced, and the assignments of error, in that case, are the same as are contained in the record in the instant case. Plaintiff had a verdict and judgment below for $6,500, and defendant appeals.
Regarding the facts of the accident, as disclosed by the evidence, a statement of them may be dispensed with, as they are fully set out in the opinion in the said case of Marie Mach v. Philip D. C. Ball.
Defendant, however, in this case further contends that the trial court committed error in refusing defendant's instruction withdrawing from the jury the last chance doctrine. This issue was in effect withdrawn by the court by instruction No. 8, given at the request of defendant. Instruction No. 8 expressly limited the jury's consideration to the other assignments of negligence. Furthermore, plaintiff did not submit his case on the last chance doctrine, but abandoned that issue; therefore no harm resulted to the defendant because of the refusal of said instruction. Johnson v. Railroad, 259 Mo. 550, 168 S. W. 713.
Defendant further contends that the court erred in refusing to give to the jury the following instruction:
"The court instructs the jury that, if you find and believe from the evidence that Marie Flach, wife of plaintiff, ran from the east side of Hamilton avenue over to the west side and immediately in front of a moving south-bound Hamilton avenue street car, and that her act in so doing directly contributed to cause her injury, then your verdict must be for the defendant."
The allegations of contributory negligence upon which the instruction is evidently bottomed is charged in the answer as follows:
"That said Marie Flach negligently and carelessly ran in front of said south-bound Hamilton avenue car and into that portion of Hamilton avenue to the west of said car when her view was so obstructed that she could not see whether any vehicle was approaching in that portion of the street."
This issue was submitted to the jury by defendant's instruction No. 9 given to the jury. That instruction told the jury, in substance, that
If the jury believed from the evidence that Marie Flach "ran from the east side...
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