Frankel v. Hudson

• Decision Date: 02 July 1917
• Docket Number: No. 18174.,18174.
• Citation: 271 Mo. 495,196 S.W. 1121
• Parties: FRANKEL v. HUDSON.
• Court: Missouri Supreme Court

196 S.W. 1121

271 Mo. 495

FRANKEL v. HUDSON.

No. 18174.

Supreme Court of Missouri, Division No. 1.

July 2, 1917.

Motion for Rehearing Denied July 14, 1917.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Morris Frankel against Herbert N. Hudson. From an order overruling motion to set aside involuntary nonsuit, plaintiff appeals. Reversed and remanded, with directions.

David Goldsmith and Sale & Frey, all of St. Louis, for appellant. W. Christy Bryan and Charles E. Morrow, both of St. Louis, for respondent.

BLAIR, J.

Appellant brought this action for damages for injuries received when he was struck by respondent's automobile. This appeal followed an order overruling a motion to set aside an involuntary nonsuit. Since his appeal in this case, appellant began a second action against respondent, in which the petition counted on the same facts. Respondent has filed a motion to dismiss the appeal on the ground that the institution of the second action is an abandonment of the appeal in this. After the petition in this case was filed, appellant gave notice to take depositions in Chicago, and subpœnaed respondent to give his deposition in that city. Respondent did not appear, and appellant subsequently moved to strike out his answer. This motion was overruled, and this ruling is assigned for error. Before the trial appellant caused to be issued a subpœna duces tecum, commanding one Owen Jackson to produce at the trial a writing signed by respondent, and alleged to contain material admissions. Jackson made return to this subpœna that he was an attorney at law and was counsel of record for respondent in this case, and that all communications by respondent to him were privileged; that he did not have, at the time the subpœna was served on him nor thereafter, any writing or statement or copy thereof such as was described in the subpœna. The court took up the matter, recalled the subpœna, and set aside the order for its issuance. This is assigned for error. After the evidence was in and respondent's demurrer thereto had been tendered and respondent had announced he would stand on his demurrer, counsel asked that appellant be recalled, a dispute having arisen as to his testimony. This was refused, and the refusal is assigned for error. The evidence concerning the manner of appellant's injury is set out in the opinion.

I. Respondent contends the filing of the second action constituted an abandonment

of the appeal, and that, despite the fact no service was had in such second action and it was dismissed for want of prosecution long prior to the docketing and submission of this cause, this appeal must be dismissed. Cases are cited. In Dannan v. Coleman, 8 Mo. App. 595 (memo) it is held that a defendant who takes leave to plead after his demurrer is overruled is presumed to abandon his demurrer, and cannot stand on it after an interlocutory judgment against him for failure to plead. In Gilstrap v. Felts, 50 Mo. loc. cit. 431, appellant had, after judgment arrested and new trial granted, participated in the new trial. It was held he could not complain of error in granting the new trial. In Burke v. Cunningham, 42 Neb. 645, 60 N. W. 903, an appeal was first taken and a writ of error subsequently sued out. This last was held as an abandonment of the appeal under the law of that state. These decisions do not decide the question before us. From the statute (sections 1800, 1804, R. S. 1909) it appears the pendency of this action might have been tendered as ground of abatement of the second action. The institution of the second action no more constituted an abandonment of this appeal than it, ipso facto, would have constituted an abandonment of this action had this been pending in the circuit court when the second action was begun.

II. The question whether the evidence introduced entitled appellant to have his case submitted to the jury necessitates an examination of the testimony.

Appellant testified that about 9:30 a. m., June 5, 1912, he and one Jordan were on their way to Seventh and Morgan streets, and had reached the southwest corner of Seventh and Locust; that an east-bound street car had stopped there, and that he and Jordan waited on the sidewalk until the bell for the car to proceed sounded; that he and Jordan then stepped into the street and took four or five steps north into Locust street, when the car struck him, and he remembered nothing more.

Jordan testified that he and appellant reached the curb on the southwest corner of Seventh and Locust and stopped because of the presence of a street car in the street; that there "were lots of people there"; that he and appellant waited until the street car moved on, and then took one step into the street, and were immediately struck; that before stepping into the street he looked west, and did not see the automobile; that when he first saw it it was 5 or 6 feet west of appellant; that "it might not have been a second" after they stepped into the street before they were struck; it was a very short time; "we had no more than hit the curb before we met with the accident;" that the right-hand front fender struck appellant; that, aside from the street car, he saw, before stepping into the street, no moving vehicle in Locust street west of the point where he and appellant were standing. Recross-examination:

"Q. The fact of the matter is that the first time you looked west, after you went to step down on to the street, or after you had stepped down on the street, you saw this automobile some 4 or 5 feet west of you — wasn't it right on you, the first time you looked west after you stepped into the street? A. Yes, sir. Q. You saw the automobile some 4 or 5 feet away from Frankel (appellant)? A. Yes, sir. Q. And then it was almost on you, and immediately struck you? A. Yes, sir; that is it exactly."

Recalled, Jordan testified that when he saw the automobile he tried to jerk appellant out of the way; that appellant was paying no attention at all, and he (Jordan) was not paying a great deal; that he and appellant would not have been struck if they had stood where they were, provided the car had come straight; that the car actually swerved to the north; that he may have jerked Frankel to the north; that he was excited.

James Fitzpatrick testified he was on the northwest corner of the crossing and saw the occurrence; that appellant and Jordan were standing in the street, talking earnestly; they were about 4 feet from the curb; that he saw the automobile approaching, but 15 or 20 feet away from them, and called to them, but they "didn't seem to hear"; that defendant sounded his horn, but they seemed not to hear it; that as defendant saw he "was going to run into them, he turned the machine a little north, and the two men had seen the machine at that time, and they ran in the same direction to get out of the way," and the automobile struck them; that he was not a good judge of speed, but supposed the automobile was going five or six miles per hour; that it was 20 to 25 feet from the men when he first saw it; that the space between the south car track and the curb at that point is 10 or 11 feet; that he saw no street car there. "Q. You say you heard a horn blow? When did this horn blow? A. Shortly before it hit the man. Q. About how far was the machine from the man? A. Well I guess the distance, when I first had seen the machine, was about 25 or 30 feet away, something like that. Q. Was it the automobile horn that blew? A. Yes, sir." He testified that if the men had stood still, where they were when he first saw the automobile, it would, had it continued in its course, have passed without striking them; that the automobile approached to within 10 feet of the men, and they ran north in the same direction the automobile turned, and they had gone about 8 or 10 feet when it struck them.

There was evidence the automobile could have been stopped in 3½ to 6 feet, and that the rate at which it was traveling, five or six miles an hour, was a careful rate, and one at which the vehicle could be said to be under control.

In determining whether the cause should have been submitted to the jury, all evidence and inferences unfavorable to appellant must be disregarded, and all evidence and all reasonable inferences favorable to him must be taken into consideration. This rule is not affected by the fact that the witnesses were all called by appellant. While he could not impeach one of his own witnesses, he was at liberty to prove the facts to be otherwise than as such witness testified. Schumacher v. Breweries Co., 247 Mo. loc. cit. 154, 155, 152 S. W. 13, and cases cited.

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