Hart v. Weber

• Decision Date: 03 September 1932
• Docket Number: No. 30330.,30330.
• Citation: 53 S.W.2d 914
• Parties: HART v. WEBER.
• Court: Missouri Supreme Court

53 S.W.2d 914

HART v. WEBER.

No. 30330.

Supreme Court of Missouri, Division No. 1.

September 3, 1932.

Rehearing Overruled October 22, 1932.

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

Suit by John Hart against Fred H. Weber and another. From the judgment for plaintiff, named defendant appeals.

Affirmed.

Fred H. Blades and Allen, Moser & Marsalek, all of St. Louis, for appellant.

Levinson, Boisseau & Levinson and Joseph F. Dickmann, all of St. Louis, for respondent.

ATWOOD, J.

This is an appeal from a personal injury judgment for $15,000 in favor of John Hart and against Fred H. Weber. The injuries complained of were alleged to have been sustained by Hart when he was struck by a motortruck operated by Herman Held while in Weber's employ. Held was also a defendant, but Weber alone has appealed.

The only points urged by appellant are that the court erred in giving instruction No. 2, requested by plaintiff, and that the verdict was excessive. The challenged instruction is as follows:

"You are further instructed that if you believe and find from the evidence that on the 20th day of May, 1927, one Herman Held was operating an automobile truck in a northerly direction on Grand boulevard in the City of St. Louis, Missouri, and that plaintiff was at said time a pedestrian thereupon, then, under the law it became and was the duty of Held to exercise the highest degree of care, as elsewhere defined in these instructions, to prevent striking and injuring the plaintiff; and if you further find and believe from the evidence, that Held saw, or by the exercise of the highest degree of care on his part, could have seen the plaintiff in a position of danger of being struck by the said automobile truck, and that plaintiff was oblivious thereof; and if you further find and believe from the evidence that thereafter, Held could with safety to himself, have stopped the said truck, or checked its speed, or turned it aside, and could thereby have avoided colliding with the plaintiff, then you are instructed that his failure to do so, if he did so fail, constituted negligence, and if you find and believe that such negligence, if any, on his part directly caused the plaintiff to be struck and injured, then your verdict will be for the plaintiff and against the defendant; provided you further find that Held was at said time the agent and servant of defendant and operating the said truck on defendant's business."

Appellant's first criticism of the above instruction is that it "imposes the duty upon defendant's servant to exercise the highest degree of care to prevent striking plaintiff, without regard to plaintiff's position with reference to the truck." It is directed to the first clause of the instruction which closely follows that part of Laws of Missouri 1921, 1st Extra Session, p. 91, § 19, now section 7775, R. S. 1929 (Mo. St. Ann. § 7775), which requires that every person "operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, and at a rate of speed so as not to endanger the property of another or the life or limb of any person," etc. Reference is made to other instructions defining "the highest degree of care." As said in Gude v. Weick Bros. Undertaking Co., 322 Mo. 778, 16 S.W.(2d) 59, 60: "It is made the duty of every person operating a motor vehicle to exercise the highest degree of care. When? Everywhere on the highways. When? At all times because no exceptions are authorized." We think the criticism is without merit.

It is next urged that the instruction is erroneous because it "nowhere requires the jury to make a positive finding that plaintiff was in a position of imminent peril." It seems that any required finding would be a "positive finding." A proper inquiry would be whether or not the finding was plainly required. The language of the instruction fairly meets this test, and the objection is overruled.

The next objection is that the instruction "erroneously assumes obliviousness on plaintiff's part," and that there was no evidence of any such fact. Whether or not such was necessary (Wenzel v. Busch [Mo. Sup.] 259 S. W. 767, 770; Karte v. J. R. Brockman Mfg. Co. [Mo. Sup.] 247 S. W. 417, 423), plaintiff pleaded, and this instruction required the jury to find, "that plaintiff was oblivious" of danger. On the contention that there was no proof that plaintiff was oblivious of his peril, we find that plaintiff testified as follows:

"Grand boulevard and Alberta street are both public streets in the city. Grand runs north and south and Alberta runs east and west: I live on the north side of Alberta street. When I left home that morning I went direct down on the north side of Alberta until I got to Grand. I went direct west until I got to Grand and then crossed Alberta to the south curb of Alberta. Then I turned west and went to within about three feet of the street car track, and then I proceeded south on Grand. I walked out into Grand boulevard to catch the car. I had to get a northbound car. There is a double street car track in Grand boulevard. The northbound car is on the east side, that is east of the center of the street. Alberta street is about 30 or 35 feet wide from curb to curb. Grand avenue is from 50 to 60 feet wide from curb...