Heibel v. Ahrens

• Decision Date: 20 December 1932
• Docket Number: No. 30758.,30758.
• Citation: 55 S.W.2d 473
• Parties: HEIBEL v. AHRENS.
• Court: Missouri Supreme Court

55 S.W.2d 473

HEIBEL v. AHRENS.

No. 30758.

Supreme Court of Missouri, Division No. 1.

December 20, 1932.

Appeal from St. Louis Circuit Court; Harry E. Sprague, Judge.

Action by Leola Heibel, by her next friend, against William H. Ahrens. From a judgment for the defendant, the plaintiff appeals.

Affirmed.

Louis E. Trieseler and Foristel, Mudd, Blair & Habenicht, all of St. Louis, for appellant.

Leahy, Saunders & Walther, Harold F. Hecker, and Lyon Anderson, all of St. Louis, for respondent.

ATWOOD, J.

This appeal is from judgment entered upon a verdict for defendant in an action for damages on account of injuries alleged to have been sustained by plaintiff when she was struck by defendant's automobile.

The accident happened at the intersection of Gravois and Eichelberger avenues in the city of St. Louis. Gravois is a north and south street, and Eichelberger is an east and west street. Plaintiff claimed that prior to the accident she had been standing on the sidewalk in front of a store on the east side of Gravois at this intersection waiting for a street car coming from the south, and, when the street car appeared about half a block away, she walked into the street and stood waiting for said car; that, when the street car drew up and had about halfway passed her, she looked up and saw defendant's truck coming about one foot from the side of the street car, and an instant later she was struck.

Defendant's evidence was that plaintiff was struck on her way from the west side to the east side of the street. Defendant testified that prior to the accident he was traveling alongside of the street car; that the street car did not stop at the regular stopping place where plaintiff claimed she was waiting for it, but continued on past the stopping place on Eichelberger avenue, when suddenly plaintiff dashed in front of the street car directly in the path of his truck; that she was about five feet in front of his truck when she first appeared; and that he applied his brakes and swerved to the gutter in an effort to avoid striking her.

Defendant was corroborated in his testimony by a witness who testified that she saw plaintiff leave the west curb of Gravois and dash directly in front of the street car. She stated that she figured the street car instead of the truck was going to hit plaintiff.

Although plaintiff pleaded several acts of negligence, she elected to go to the jury only on the assignment charging negligence under an ordinance which required said automobile to be kept as near to the right-hand curb as practicable. Defendant then asked, and the trial court gave, instructions A, B, C, and D withdrawing other specifications of negligence from consideration of the jury. Appellant now contends that the giving of these withdrawal instructions was reversible error, and that the court also erred in giving instructions F and G.

Instruction A withdrew from the jury's consideration the assignment that defendant "negligently operated said automobile at a high, excessive, unreasonable and dangerous rate of speed, under the circumstances, and so as to endanger the life and limbs of persons there, particularly the plaintiff."

Instruction B withdrew the assignment that defendant "negligently failed to sound or give any signal or warning of the approach and movement of said automobile."

Instruction C withdrew the assignment that defendant "negligently failed to swerve said automobile so as to avoid colliding with and striking the plaintiff."

Instruction D withdrew the assignment of negligence under the humanitarian doctrine.

Each of these withdrawal instructions concluded as follows: "And in deliberating upon your verdict you must not consider said assignment of negligence, which assignment is accordingly withdrawn from your consideration."

Appellant's first contention is that instructions withdrawing abandoned specifications of negligence from the consideration of the jury are proper only when plaintiff offers no instruction in the case except on the measure of damages. Counsel for appellant offer no authorities in support of this proposition, and we find none. We have, in fact, ruled otherwise in Yuronis v. Wells, 322 Mo. 1039, 1046, 17 S.W.(2d) 518; Denkman v. Prudential Fixture Co. (Mo. Sup.) 289 S. W. 591, 596; and Nahorski v. Ry. Co., 310 Mo. 227, 237, 274 S. W. 1025.

Counsel for appellant also insist that the above withdrawal instructions are erroneous because they tend to confuse and mislead the jury with respect to the issue submitted, or with respect to evidence bearing upon such issue, citing Shumate v. Wells, 320 Mo. 536, 9 S.W.(2d) 632; Kamer v. R. R. Co., 326 Mo. 792, 32 S.W.(2d) 1075; Gettys v. Am. C. & F. Co., 322 Mo. 787, 16 S.W.(2d) 85; Berry v. Ry. Co., 324 Mo. 775, 26 S.W.(2d) 988; Schulz v. Smercina, 318 Mo. 486, 1 S.W. (2d) 113; Lewis v. I. C. R. R. (Mo. Sup.) 50 S.W.(2d) 122, 125.

We have no fault to find with the rule announced in the above cases, but think it is without application here. The withdrawal instructions in this case, as in the case of Yuronis v. Wells, 322 Mo. 1039, 1046, 17 S.W. (2d) 518, 522, "made no reference whatsoever to the facts and circumstances in evidence, and withdrew from the jury's consideration none of the evidence in the cause." They are in marked contrast to the withdrawal instruction in Schulz v. Smercina, 318 Mo. 486, 498, 1 S.W.(2d) 113, 114, above cited and particularly relied upon by appellant. One of the assignments of negligence in the Smercina Case was that defendant's agent failed "to keep a lookout, either ahead or laterally." Plaintiff's case having been submitted on the humanitarian doctrine only, defendant sought to withdraw the above specification of negligence by an instruction using "only the term `laterally,' thus leaving an inference that a failure to look `ahead' might be vital, but to `lookout laterally' was not required." Loc. cit. 499 of 318 Mo., 1 S.W.(2d) 113, 119. It was held that from such an instruction the jury might erroneously conclude that it should ignore important evidence pertinent to submission of the case under the humanitarian rule. But it does not appear that any such contingency could arise on the case here made and submitted. The other cases cited by appellant are likewise distinguishable.

It is also urged in appellant's behalf that the jury must have been misled by these withdrawal instructions because it found for defendant, notwithstanding the uncontroverted evidence shows that at the time and immediately before plaintiff was struck defendant was not driving his truck as close to the right-hand curb as practicable. Without conceding the accuracy of this statement of the evidence, we call attention to the fact that defendant testified with corroboration that plaintiff suddenly dashed from west to east in front of the street car directly in the path of his truck, that she was about five feet in front of his truck when she first appeared, and that he applied his brakes and swerved to the gutter in an unsuccessful effort to avoid hitting her. If the jury believed this testimony, submitted under defendant's plea of contributory negligence, it might well have found that, even though de...