Frees v. Hosack

• Citation: 119 S.W.2d 460
• Decision Date: 09 September 1938
• Docket Number: No. 24633.,24633.
• Parties: FREES v. HOSACK.
• Court: Court of Appeal of Missouri (US)

119 S.W.2d 460

FREES v. HOSACK.

No. 24633.

St. Louis Court of Appeals. Missouri.

September 9, 1938.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Action by Anton Frees against L. C. Hosack, also known as Lawrence Clyde Hosack, an infant, by Alice Lawrence Hosack, guardian ad litem, for injuries suffered when plaintiff while crossing a street at a street intersection was allegedly struck by defendant's automobile. The jury returned a verdict for defendant. To review an order sustaining plaintiff's motion for a new trial, defendant appeals.

Order reversed and cause remanded, with instructions.

Leahy, Walther, Hecker & Ely and Lyon Anderson, all of St. Louis, for appellant.

Henry C. Stoll, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries which were suffered by plaintiff on November 9, 1935, when he was struck (as he claims) by an automobile being driven by defendant. Upon a trial to a jury a verdict was returned in favor of defendant, but thereafter plaintiff's motion for a new trial was sustained upon the ground that error had been committed in the giving of defendant's instruction No. 8 upon the issue of contributory negligence. From the order so entered sustaining the motion for a new trial, defendant's appeal to this court has been perfected in the usual course.

The accident happened at the intersection of Page Boulevard and Kingsland Avenue in St. Louis County. Page Boulevard runs east and west, and Kingsland Avenue north and south. Kingsland Avenue is a comparatively narrow street except at its intersection with Page Boulevard, where it flares out to a width of from thirty-three to thirty-five feet.

Plaintiff, an elderly man, was walking east along the north side of Page Boulevard, approaching Kingsland Avenue which it was his intention to cross, while defendant was driving east on Page Boulevard, likewise approaching Kingsland Avenue into which he intended to make a left turn.

The time was about 7:30 o'clock in the evening, and there was testimony that a light mist was falling.

Plaintiff's own testimony was that just as he stepped off of the curb into Kingsland Avenue, he "looked in on Kingsland", that is, to the north, and seeing no traffic approaching, started to go on across the street. In other words, under his own admission he did not look at all to the south in the direction from which defendant's automobile came, and in fact did not see the automobile until it was "on top" of him.

The accident happened, under plaintiff's version of the facts, when he was at a point about three feet east of the west curb line of Kingsland Avenue and about two feet north of the north curb line of Page Boulevard. According to plaintiff's testimony, the car struck him and knocked him down, while defendant's testimony was that plaintiff walked into the side of the car. The evidence disclosed that defendant made the turn at a speed of ten or fifteen miles an hour, and it was conceded by both parties that when he stopped, his car was faced slightly to the northeast, which would mean that his turn into Kingsland Avenue had not yet been fully completed.

The case was submitted to the jury upon the theory of defendant's statutory negligence in having failed to keep his automobile as near to the right-hand side of Kingsland Avenue as was practicable. Issue had been joined upon a general denial coupled with a plea of contributory negligence; and by defendant's instruction No. 8 the jury had been charged that if they found that plaintiff had undertaken to cross Kingsland Avenue at its intersection with Page Boulevard without looking for traffic approaching over and along said street, and that if he had looked he could have seen defendant's automobile approaching in time to have avoided the accident, then in having failed to look he had been guilty of negligence directly contributing to cause his injury, and was not entitled to recover against defendant.

As we have already pointed out, the new trial was granted by the court upon the ground of error in the giving of instruction No. 8, and now defendant argues that not only was such instruction properly given, but that aside from any question of its correctness, the giving of it could not have constituted ground for the granting of a new trial. This upon the theory that the verdict was in any event for the right party inasmuch as plaintiff (in defendant's view of the matter) had failed to make a case for the jury upon the sole assignment of negligence submitted by his principal instruction.

We think that defendant is right in his insistence that plaintiff was not entitled to recover upon the theory of a violation of Section 7777(b), R.S.Mo.1929, Mo.St. Ann. § 7777(b), p. 5213, which provides that "all vehicles when in operation shall be kept as close to the right-hand side of the highway as practicable".

Our Supreme Court has specifically held that this particular statutory provision applies ...