Hartley v. McKee

• Court: Missouri Court of Appeals
• Writing for the Court: McCullen
• Citation: Hartley v. McKee, 86 S.W.2d 359 (Mo. App. 1935)
• Decision Date: 08 October 1935
• Docket Number: No. 23539.,23539.
• Parties: HARTLEY v. McKEE.

86 S.W.2d 359

HARTLEY v. McKEE.

No. 23539.

St. Louis Court of Appeals. Missouri.

October 8, 1935.

Rehearing Denied October 29, 1935.

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

"Not to be published in State Reports."

Action by Roy Hartley against William E. McKee. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Joseph N. Hassett and Ernest E. Baker, both of St. Louis, for appellant.

Joseph Goodman, of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries alleged to have been sustained by respondent, plaintiff below, in an automobile collision on October 20, 1932, in University City, St. Louis county, Mo. A trial before the court and a jury resulted in a verdict in favor of plaintiff and against appellant, defendant below, in the sum of $2,250. Defendant brings the case to this court by appeal.

Plaintiff's petition alleged that on October 20, 1932, plaintiff was operating his automobile eastwardly on Olive boulevard toward and across its intersection with Pennsylvania avenue, both open and public streets much used for public travel in University City, and that at the same time and place defendant was operating his automobile southwardly upon Pennsylvania avenue toward and across its intersection with Olive boulevard; that defendant in attempting to make a left-hand turn in said intersection to go east upon Olive boulevard negligently collided with plaintiff's automobile, turning plaintiff's automobile around and over, causing plaintiff to be hurled about in his automobile, striking various parts of his body against various parts of said automobile, and thereby causing plaintiff serious and permanent injuries.

Plaintiff pleaded a number of assignments of negligence in his petition, but submitted his case to the jury upon defendant's alleged negligence under the humanitarian doctrine and his alleged negligence in failing to stop the automobile he was driving before entering the intersection referred to.

Defendant contends that the court committed prejudicial error in permitting plaintiff to read in evidence Ordinance No. 2086 of the city of University City, claiming that said ordinance was not properly pleaded by plaintiff, and that the ordinance did not tend to prove any other pleaded act of negligence.

A proper consideration of this point necessitates a statement of that portion of plaintiff's petition which refers to the ordinance in question. In this connection the petition alleged: "Plaintiff further states that Olive Boulevard, upon which he was traveling, at all times herein, was a boulevard, and a much traveled highway in the City of University City, Missouri, and that plaintiff was operating his automobile southwardly on Pennsylvania Avenue, toward and near the intersection of Olive Boulevard with Pennsylvania Avenue, and defendant carelessly and negligently failed to observe the rules of the road, in that he failed to bring his said automobile, upon its approach to said Olive Boulevard, at its said intersection with Pennsylvania Avenue, to a full and complete stop; and that there was in force on said date, an ordinance of the City of University City, Missouri, which provides, in effect, that every person operating a motor vehicle on Pennsylvania Avenue at its intersection with Olive Boulevard, shall bring it to a full and complete stop before crossing over or entering the said Olive Boulevard, but the defendant, nevertheless, in direct violation of said ordinance failed to comply with the said ordinance in that he did not bring his said automobile to a full and complete stop upon its approach along said Pennsylvania Avenue before entering the intersection of Olive Boulevard with said Pennsylvania Avenue."

We believe it is clear from the foregoing part of the petition that the substance and effect of the ordinance were pleaded and the violation thereof by defendant charged in such terms as to warrant the court in admitting the ordinance in evidence. It cannot reasonably be said that any one could be misled or left in doubt as to the ordinance referred to in the petition even though its specific number was not set forth. Furthermore, it was not necessary to set forth the ordinance in hæc verba in view of the fact that its terms were pleaded in legal effect and a violation thereof charged. It is true, as contended by defendant, that the trial court could not take judicial notice of the ordinances of University City, and that the general rule of law is well established that if a cause of action is based directly on a violation of a municipal ordinance, the pleading must set forth such ordinance. Also, it may be conceded, as defendant contends, that it is only where an ordinance is to be used as a mere matter of evidence that it need not be pleaded. These principles are announced in the cases cited by defendant, but the cases mentioned constitute no authority for holding in this case that the ordinance was not sufficiently pleaded, particularly in view of the fact that defendant, so far as the record herein discloses, made no objection and filed no motion based upon the insufficiency of the petition in this respect, but, on the contrary, filed his answer setting up his defenses and went to trial on the petition as shown above.

We hold that the ordinance was sufficiently pleaded, and that the court committed no error in admitting it in evidence. Moberly v. Hogan, 131 Mo. 19, 24, 25, 32 S.W. 1014; Genglebach v. Payne (Mo. App.) 236 S.W. 1092, 1096.

We also think the ordinance was admissible as evidence in support of the common-law negligence charged in the petition against defendant for his alleged failure to observe the rules of the road by failing to bring his automobile to a full and complete stop at the intersection of Olive boulevard and Pennsylvania avenue.

It has been held that failure of the driver of a motor vehicle to obey a stop sign at an intersection of public highways is an element for consideration by the jury in determining the question of negligence, for the reason that one who fails to observe and obey such warning signs is not acting in an ordinarily prudent manner and may be found guilty of common-law negligence by the jury. Roberts v. Wilson, 225 Mo. App. 932, 33 S.W.(2d) 169; Foulks v. Lehman (Mo. App.) 17 S.W.(2d) 994.

Defendant complains of a part of plaintiff's instruction No. 1, which is as follows: "The court instructs the jury that if you find and believe from the evidence that, upon the occasion in question, plaintiff was driving his automobile in an eastwardly direction over and along Olive Boulevard and that when at or near its intersection with Pennsylvania Avenue, same was struck by an automobile being driven and operated by the defendant * * *."

It is urged that the above part of the instruction assumes that the automobile driven by plaintiff was struck by an automobile driven by defendant; that this was a disputed issue at the trial, and therefore the instruction was prejudicially erroneous in assuming that fact.

We are unable to agree with defendant's contention in this respect. The instruction clearly left the matter to the jury to determine whether or not plaintiff's automobile was struck by an automobile driven by defendant. A mere reading of the instruction demonstrates that there is no merit in this point. The jury were told: "If you find and believe from the evidence * * * that same was struck by an automobile being driven and operated by defendant." We find no assumption of the disputed fact in the language of the instruction, and therefore, rule this point against defendant.

Plaintiff's instruction No. 1 was based upon the alleged negligence of defendant under the humanitarian doctrine, and defendant makes a further complaint against it on the ground that it erroneously authorized a verdict for plaintiff if the jury found plaintiff to be in imminent peril "just prior to said collision."

The part of the instruction complained of under this point is as follows: "* * * And if you further find and believe that just prior to said collision plaintiff and his said automobile became and were in a position of imminent peril from collision with defendant's automobile * * * and that defendant saw, or by the exercise of the highest degree of care could have seen, plaintiff and his said automobile in such position of imminent peril * * * all in time thereafter, by the exercise of the highest degree of care and with the use of the means and appliances at hand and without unreasonable danger to his said automobile, its occupants and other vehicles and persons thereabout, to have retarded the speed of his said automobile, turned same to one side or to have stopped same and * * * thereby have avoided said collision, if any, and if you further find that defendant failed so to do * * *."

The instruction then goes on to direct a verdict for plaintiff in the event the jury finds that the collision was caused as a direct and proximate result of such failure on defendant's part, if any.

In support of his contention, defendant argues that by giving such instruction the court unduly restricted and limited the application of the humanitarian doctrine to a period of time too short before the collision; that this constituted a misdirection which confused the jury, and was, therefore, prejudicial error.

Defendant's criticism is directed against the words "just prior" as they appear in the instruction. We are unable to see how defendant was in any way prejudiced by the use of these words in the instruction. The "position of imminent peril" mentioned in the instruction must have arisen before the collision actually took place to constitute one of the necessary elements of a case under the humanitarian doctrine. It was, therefore, necessary that the jury be so told by the use of some appropriate word or words. We believe it was necessary to a correct statement of this phase of the...