Hengelsberg v. Cushing

• Citation: 51 S.W.2d 187
• Decision Date: 21 June 1932
• Docket Number: No. 22131.,22131.
• Parties: HENGELSBERG v. CUSHING.
• Court: Court of Appeal of Missouri (US)

51 S.W.2d 187

HENGELSBERG v. CUSHING.

No. 22131.

St. Louis Court of Appeals. Missouri.

June 21, 1932.

Rehearing Denied July 1, 1932.

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

"Not to be officially published."

Action by Flora Hengelsberg against John B. Cushing. Judgment for plaintiff, and, from an order sustaining defendant's motion for a new trial, plaintiff appeals.

Affirmed, and cause remanded.

Julian C. Jaeckel, Homer J. Fitzpatrick, and Allen, Moser & Marsalek, all of St. Louis, for appellant.

Ely & Ely, of St. Louis, for respondent.

BECKER, J.

Plaintiff, in her action for damages for personal injuries, recovered judgment against the defendant in the sum of $3,500. The trial court sustained defendant's motion for a new trial, and plaintiff in due course appeals.

Near midnight, on July 27, 1930, plaintiff was a passenger in her husband's automobile being driven eastwardly on highway 66, near Grays Summit, Mo. The defendant was operating his automobile westwardly along the same highway, and the two automobiles collided while rounding a curve, and plaintiff met with injuries.

Plaintiff's petition is based upon five assignments of negligence. The defendant's answer is a general denial.

Plaintiff's case was submitted to the jury upon three assignments of negligence, namely, that the defendant negligently failed and omitted to operate his automobile as close to the right-hand side of the highway as practicable; that defendant negligently failed and omitted, upon meeting the automobile in which plaintiff was riding, to turn his automobile to the right of the center of the highway so as to pass without interference; and that defendant negligently failed and omitted to reduce the speed of his automobile while rounding the curve of the highway.

The scene of the collision was three miles east of Grays Summit, where the concrete slab of the highway is 18 feet wide, and has a black line marking the center of the roadway. Plaintiff and her husband testified that their automobile, at the time of the collision, was being operated on the right-hand or south side of the center of the road, and was traveling at 25 to 30 miles per hour. Four witnesses for plaintiff testified to the presence of tire marks and some dirt which plaintiff's husband claimed had been jarred from the fender of his automobile at the time of the collision, as being found on the south side of the center of the road.

In direct conflict to the testimony of the plaintiff, the defendant and the five occupants of his automobile each testified to facts which tend to absolve defendant from liability for this accident. Each of these witnesses testified that the defendant was driving his automobile westwardly on the highway between 25 and 35 miles per hour, and that at the time of the impact the wheels of defendant's automobile were over to the left or north of the center line of the roadway. Thus the question as to just where the respective cars were with reference to the black line marking the center of the roadway when the collision occurred was a vital issue in the case, with the testimony of the parties in direct conflict thereon.

At the instance of plaintiff, the court gave instruction numbered 2, which reads as follows: "The Court instructs the jury that if you find and believe from the evidence that near Grays Summit, Missouri, on the occasion referred to in the evidence, plaintiff was riding in an automobile being operated eastwardly on Highway 66, and that defendant was operating an automobile westwardly on said highway; that the automobile being operated by defendant then and there and on the south side of said highwsy came into collision with the automobile in which plaintiff was riding; and if you further find that defendant failed and omitted, upon meeting the automobile in which plaintiff was riding, to turn his automobile to the right (north) of the center of said highway so as to pass the automobile in which plaintiff was riding without interference, then the Court instructs you defendant was guilty of negligence, and if you further find that such negligence, if any, on the part of defendant, directly contributed to cause the collision of said automobiles and injury to plaintiff, if any, then the Court instructs you that your verdict must be in favor of plaintiff and against the defendant."

Concededly the trial court sustained defendant's motion for a new trial on the ground of error in the giving of said instruction numbered 2, in that said instruction assumed that the defendant, who was driving his automobile westwardly on highway 66, near Grays Summit, Mo., was operating his...