Geisendorf v. Brashear Truck Co., 21769.

• Decision Date: 08 November 1932
• Docket Number: No. 21769.,21769.
• Citation: 54 S.W.2d 72
• Parties: GEISENDORF v. BRASHEAR TRUCK CO.
• Court: Missouri Court of Appeals

54 S.W.2d 72

GEISENDORF v. BRASHEAR TRUCK CO.

No. 21769.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be published in State Reports."

Action by Lillian Geisendorf against the Brashear Truck Company. From an order sustaining defendant's motion for a new trial, plaintiff appeals.

Affirmed and remanded.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for appellant.

Wilbur C. Schwartz, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff in an automobile accident. Upon a trial to a jury, a verdict was returned in plaintiff's favor and against defendant in the sum of $5,000. The appeal is by plaintiff from the order of the court sustaining defendant's motion for a new trial upon the ground of error in the refusal of two of defendant's requested instructions.

The accident occurred on June 14, 1929, at or near the northwest corner of the intersection of Jefferson avenue and Crittenden street, in the city of St. Louis. Plaintiff was riding southwardly along Jefferson avenue in an automobile which was being driven by her husband. At Crittenden street the automobile was brought to a stop behind a street car from which passengers were alighting, and thereafter defendant's truck ran into it from the rear. The real issue of fact in the trial of the case was whether the collision was due to the negligence of the driver of the truck, or to the negligence of plaintiff's husband in stopping his automobile so suddenly in front of the truck that the driver had no time or opportunity to avoid the collision.

Suffice it to say that the petition counted upon some five specifications of primary negligence, coupled with an assignment under the humanitarian doctrine; and no point is made about the sufficiency of plaintiff's evidence to have taken the case to the jury. The answer was a bare general denial.

Plaintiff submitted her case without instructions save for one upon the measure of damages. Defendant, for its part, secured instructions limited to the questions of the burden of proof and the province of the jury with respect to determining the credibility of the witnesses and the weight to be given their testimony. However, defendant did request some ten instructions upon the issues of negligence in the case, all of which were refused by the court; and the motion for a new trial was sustained upon the ground that two of such instructions, designated as I and K, should have been given. Those instructions follow:

"I. The Court instructs the jury that if you find and believe from the evidence that the driver of the car in which plaintiff was riding brought his said automobile to a sudden and abrupt stop, and that the defendant, its agent and servant, thereafter, could not by the exercise of the highest degree of care have stopped his said motor truck, turned the same aside, and thus and thereby have avoided striking the automobile in which plaintiff was riding, then your verdict must be for the defendant, providing you further find that the defendant was not negligent in any way in the operation of his said motor truck."

"K. The Court instructs the jury if you find and believe from the evidence that the driver of the automobile in which plaintiff was riding did not give a warning of his intention to stop said Ford coupe, that he was negligent in failing to give said warning, if you so find, and that this negligence was the direct and sole cause of the collision mentioned in the evidence, then your verdict must be for the defendant, providing you further find that the defendant was not negligent in any manner in the operation of its truck."

The propriety of the ruling of the court is the point at issue on this appeal, and we cannot escape the conclusion that the grant of the new trial should be sustained upon the grounds stated by the court as the basis for its order....