Gettemeyer v. Thies

• Decision Date: 05 July 1932
• Docket Number: No. 21915.,21915.
• Parties: GETTEMEYER v. THIES.
• Court: Missouri Court of Appeals

51 S.W.2d 868

GETTEMEYER v. THIES.

No. 21915.

St. Louis Court of Appeals. Missouri.

July 5, 1932.

As Modified on Denial of Rehearing July 15, 1932.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Florence Gettemeyer against F. Thies. From a judgment for plaintiff, defendant appeals.

Affirmed.

Cobbs & Logan, of St. Louis, for appellant.

Fred Berthold and Emery W. Chase, both of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries sustained by plaintiff in a collision between an automobile in which she was riding and a truck belonging to the defendant.

Plaintiff was a minor at the time this action was commenced, and instituted the action by her next friend. She arrived at her majority prior to the trial, and her next friend was discharged, and she was permitted to prosecute the action in her own name.

The collision in which plaintiff was injured occurred on January 13, 1930, at about 6:30 in the evening, on Florissant road, about two hundred feet north of Taylor road. Defendant left his automobile truck standing in the roadway and went into the home of Henry Peterson, which is located on the west side of the road. It was a dark, cloudy, foggy evening, and the roadway was covered with snow and ice. There were ruts in the roadway some three or four inches deep, made by vehicular traffic, so that there was a north-bound lane of travel and a south-bound lane of travel. The evidence for the plaintiff tends to show that there was room on the highway to the right of the north-bound lane of travel to park the truck. Defendant left his truck, headed north, in the ruts used by the north-bound travel. The evidence for the plaintiff tended to show that there were no lights of any description on the truck, either at the front or at the rear. Defendant admitted that there was no red light at the rear, but testified that there was a lantern attached at the rear, displaying a white light, and that the headlights were burning. The evidence is conflicting as to which light — the red or the white — was visible at the greater distance under the existing atmospheric conditions. The automobile in which plaintiff was riding was traveling northward. It was being driven by Howard Arnett, who owned it. Plaintiff, accompanied by her sister, was riding in the automobile as a guest. Plaintiff was seated on the right, and her sister on her left between her and the driver. The evidence tends to show that neither the driver nor the plaintiff saw, nor was able to see, the truck standing in the roadway until the automobile was within five to ten feet of the truck, and that the driver upon seeing the truck attempted to stop the automobile by applying the brakes and attempting to swerve it to the left, but, on account of the ruts and the icy and slippery condition of the roadway, was unable to get the automobile out of the ruts, or to stop it, and thus avoid the collision. As a result of the collision, plaintiff sustained serious and permanent injuries, for which she sues.

The petition charges, by way of specifications of negligence, (1) that the defendant, in leaving his truck standing on the highway, negligently failed to place the truck with its right side as near to the right-hand side of the highway as practicable; and (2) that the defendant negligently failed to have two white lights mounted at the front of the truck and one red light mounted at the rear of the truck.

The trial, with a jury, resulted in a verdict for plaintiff for $6,000, and judgment was given accordingly. Defendant appeals.

Defendant assigns error here upon the giving of plaintiff's instruction No. 1. The objection made against this instruction is that it submits to the jury, as predicates of liability, the negligence of the defendant in not having white lights mounted at the front of his truck as well as in not having a red light mounted at the rear. Defendant says that it was erroneous to combine in one instruction two grounds of negligence, as predicates of liability, one of which the evidence shows could not have been the proximate cause of plaintiff's injury, to wit, negligence in not having white lights mounted at the front of the truck. As to this objection, it will suffice to say that the instruction submits the two predicates in the conjunctive. Under the instruction, the jury could not have found for the plaintiff without finding that the negligence of the defendant in failing to have a red light mounted at the rear proximately caused or contributed to her injury, so that, if there was error in the instruction, it was not hurtful to the defendant. Grubbs v. Kansas City Public Service Co. (Mo. Sup.) 45 S.W.(2d) 71; La Pierre v. Kinney, 225 Mo. App. 199, 19 S.W.(2d) 306; McKenzie v. Randolph (Mo. Sup.) 257 S. W. 126; McIntyre v. St. L. & S. F. R. R. Co., 286 Mo. 234, 227 S. W. 1047; Kendrick v. Ryus, 225 Mo. 150, 123 S. W. 937, 135 Am. St. Rep. 585; Harrington v. Sedalia, 98 Mo. 583, 12 S. W. 342; Baker v. K. C., Ft. S. & M. R. Co., 122 Mo. 533, 26 S. W. 20; Potterfield v. Terminal R. R. Ass'n, 319 Mo. 619, 5 S.W.(2d) 447; Crone v. United Rys. Co. (Mo. Sup.) 236 S. W. 654; Gibler v. Q., O. & K. C. R. R. Co., 129 Mo. App. 93, 107 S. W. 1021; Jackson v. Southwest Missouri R. Co., 171 Mo. App. 430, 156 S. W. 1005; Troutman v. East St. Louis Cotton Oil Co. (Mo. App.) 224 S. W. 1014; Houston v. American Car & Foundry Co. (Mo. App.) 282 S. W. 170, 171; Bauer v. Fahr (Mo. App.) 282 S. W. 150; Agee v. Herring, 221 Mo. App. 1022, 298 S. W. 250.

The giving of plaintiff's instruction No. 4 is assigned as error on the ground that it is an abstract proposition of law. The instruction told the jury that the placing of a lantern at the rear of the truck, which displayed a white light, was not a compliance with the law requiring that a red light be mounted at the rear. Defendant says that the vice of the instruction is that it told the jury, in effect, that the failure to have a red light mounted at the rear of the truck was the proximate cause of the plaintiff's injury. We do not see why...