Gillis v. Singer

• Decision Date: 08 October 1935
• Docket Number: No. 23546.,23546.
• Citation: 86 S.W.2d 352
• Parties: GILLIS v. SINGER et al.
• Court: Missouri Court of Appeals

86 S.W.2d 352

GILLIS v. SINGER et al.

No. 23546.

St. Louis Court of Appeals. Missouri.

October 8, 1935.

As Modified on Denial of Rehearing, October 29, 1935.

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

"Not to be published in State Reports."

Action by Lavern Gillis, by Annabelle Gillis, her next friend, against Sylvester Singer, by N. A. Singer, guardian ad litem, the United Service Car Company, and another. From a judgment for plaintiff against the named defendant, the named defendants appeal.

Affirmed.

Max Sigoloff, of St. Louis, for appellants.

Roger D. Moore and F. Warner Fischer, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for personal injuries sustained by plaintiff when struck by an automobile driven by defendant Sylvester Singer, who, it is charged, was at the time in the employ of defendant United Service Car Company. Plaintiff, at the time she was struck, was crossing South Thirty-Ninth street, in the 1600 block, in the city of St. Louis. Thirty-Ninth street runs north and south. It is intersected by an alley in the middle of the block, by McRee avenue to the north of the alley, and by Lafayette avenue to the south of the alley. There are two street car tracks on Thirty-Ninth street. Plaintiff at the time of her injury, which occurred on February 4, 1933, was eight years of age. The automobile which struck her was proceeding south on Thirty-Ninth street, and she was crossing the street from east to west.

The trial, with a jury, resulted in a verdict in favor of the defendant Daniel Budiselich and in favor of plaintiff against defendants Sylvester Singer and the United Service Car Company for $3,500, and judgment was given accordingly. Defendants Sylvester Singer and United Service Car Company appeal.

At the conclusion of the whole case, defendants separately tendered instructions in the nature of demurrers to the evidence which were by the court refused, and the cause was submitted to the jury by plaintiff's instruction No. 1, predicating a recovery on the theory of negligence on the part of the defendant Singer in operating the automobile at a dangerous rate of speed, in failing to maintain a vigilant watch, in failing to operate the automobile as close to the right-hand side of the street as reasonably practicable, and in failing to give a timely warning of the approach of the automobile by sounding the horn.

For a reversal of the judgment below, defendants urge here that the court erred in refusing their instructions in the nature of demurrers to the evidence and in giving to the jury plaintiff's instruction No. 1. Defendants say that their instructions in the nature of demurrers to the evidence should have been given because there was no evidence to show negligence on the part of defendant Singer resulting in plaintiff's injury, and that instruction No. 1 should not have been given because there is no evidence to support it, and the defendant United Service Car Company further says that its instruction in the nature of a demurrer to the evidence should have been given because there was no evidence showing the ownership of the automobile and no evidence showing that defendant Singer was in the employ of defendant United Service Car Company, or that at the time of the accident he was acting in the scope of his employment.

It thus becomes necessary to set out the testimony in some detail.

Plaintiff testified as follows: "At the time the automobile struck me I had been to my aunt's, and was going back home. I tried to cross this street. I was walking slow. I was on the east side of the street. I started to cross the street at the alley. My brother, William, was with me. He went to the first car track. He dropped a nickel and stopped. I went on. The automobile came down and hit me. I saw one automobile which was the one that hit me. It was at the corner. I walked straight across the street. I did not see the car after that. The automobile did not sound a horn. I don't remember whether the car pushed or dragged me after it hit me. I don't remember any one picking me up. I remember a little bit about being taken to the hospital. There were no other children with me at the time I was hurt. There were children on the other side of the street. They had not been on my side of the street and had not crossed the street before I did."

William Gillis testified, for plaintiff, as follows: "I am twelve years old. I remember when my little sister was hit by an automobile. I gave Lavern a magazine to take up to my aunt's, and then she sold one; then we took a hold of hands and then we crossed the street, and I was on the first car track and then I dropped a nickel and I stooped down to pick it up and Lavern went on. Then when I got up Lavern was hit. I looked up and down the street before I went across it. I did not see any cars coming except the service car that was on the corner. By the corner I mean McRee Avenue. I saw no other cars approaching from the other direction. When I started across the street I was walking slow. I saw the automobile strike Lavern. After the automobile hit Lavern she could not stand up. It cut her leg. It pushed her on. She was by the alley."

Mrs. Marie Malone testified, for plaintiff, as follows: "I live at 4005 Shenandoah Avenue. I work at the Spick and Span Cleaners, 1653 South Thirty-ninth Street. I was there on February 4, 1933. I saw an accident which occurred on that day. I was standing outside the store right in the doorway talking to a gentleman there that had come along. I was talking to Mr. Jack Carr, a barber in the next block on Thirty-ninth Street. It was about noon. The Spick and Span cleaning establishment is on the west side of Thirty-ninth Street, the second door from the alley, between McRee and Lafayette. I was thirty-five feet from the alley when I saw this accident. I was facing northeast at the corner of the door facing McRee. The first street north of the alley is McRee, and the street south of the alley is Lafayette. I was talking to Mr. Carr, and I saw the machine coming down the street. Before that I had noticed some children on the other side of the street standing right near the alley, and the boy and little girl started across, but he didn't get very far and the little girl continued on across the street and got hit by this machine. I saw these children standing on the east side of Thirty-ninth Street. They started straight across Thirty-ninth Street from the center of the alley. I saw the automobile strike Lavern Gillis. She landed right in the street and was in a sitting posture and being shoved along for quite a distance, about thirty feet, before he stopped the machine, and then the man got out of the machine and picked her up. The automobile stopped about three feet from the front of my door. The automobile was riding the tracks. The little girl seemed to be about the center of the machine when he was pushing her, a little bit more to the west side. Previous to the time the child was struck there were no cars going north from Lafayette to McRee. There were no cars in front of the automobile that struck the child. It was the first car coming. It was a service car. It had a sign on it. I saw the driver get out of the car. He had a badge on his cap. There was a card displayed on the automobile, which read `United Service Car Company.' The card was on the windshield on the right side. The driver of the service car picked the child up and brought her into my store. The first thing the driver did as he brought the child into the store was to call the service car company. He went to the telephone and called the service car company. He told them he had an accident. He got change from me and told me he was going to call his company. He asked for change for the telephone. There were four passengers in the car that struck the child. There were no cars parked in that block on either side of the street. I had a clear view. There are double tracks along Thirty-ninth Street. It was a nice day. The condition of the street was dry. I saw two children on the other side of the street besides the Gillis children, and there were three children on my side of the street on the other side of the alley. Both the Gillis children did not go all the way across the street. The little boy went back. He did not come out but about three or four feet and turned around and went back, and the little girl continued across the street. The children were not walking fast, but were proceeding at a moderate pace across the street. Thirty-ninth Street is an ordinary street. There is a double track there and there is room for a car to pass when there is one going by. The distance or the space on either side of the track on Thirty-ninth Street is not wide enough to permit another automobile to pass an automobile that is parked on either side of Thirty-ninth Street as a street car is passing going the same way. I saw the automobile before the collision took place. I saw it coming down the street. It was coming down pretty fast. I noticed it coming fast in the track. At that time as it was coming south these children were not in its path. They started out from the alley to cross the street. I saw the little girl and boy start across the street. The automobile did not stop at any time until the little girl was hit. The little boy was just a little in back of the girl, and she continued to cross the street, and he turned and walked back. After the automobile struck this little girl the driver of the car brought her into the store. I went out to the automobile afterwards when the driver was putting the passengers into another service car. I was on the west side of the street when the accident occurred. There were other children on the east side of the street where the Gillis children were and there were also children on the west side of the street where I was, three children on the west side of the street and four on the...