Hengelsberg v. Cushing
| Decision Date | 31 May 1933 |
| Docket Number | No. 22388.,22388. |
| Citation | 61 S.W.2d 203 |
| Court | Missouri Court of Appeals |
| Parties | HENGELSBERG v. CUSHING. |
Appeal from St. Louis Circuit Court; Robert W. McIlhinney, Judge.
"Not to be published in State Reports."
Suit by George C. Hengelsberg against John B. Cushing. Judgment for plaintiff, and defendant appeals.
Affirmed.
Ely & Ely, of St. Louis, for appellant.
Homer J. Fitzpatrick, Julian C. Jaeckel, and Allen, Moser & Marsalek, all of St. Louis, for respondent.
This is a suit by a husband for the loss of society and services of his wife on account of injuries sustained by her due to alleged negligence of the defendant, and for injuries he sustained, repairs for his automobile, and automobile hire. Trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $3,236 and in favor of plaintiff on defendant's counterclaim. After an unavailing motion for a new trial, the case is here on appeal.
Defendant assigns as error the giving of instructions 1 and 4. Plaintiff's petition is based upon six assignments of negligence. Defendant's answer is a general denial coupled with a counterclaim alleging six assignments of negligence on the part of the plaintiff. Plaintiff's case was submitted to the jury upon two assignments of negligence; namely, that defendant negligently operated his automobile on the south side of said highway, and 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. Defendant's case (counterclaim) was submitted to the jury on the following assignment of negligence: That plaintiff drove and operated his automobile to the left of the center of the highway.
On July 27, 1930, at about 11:15 p. m., plaintiff was driving his automobile with his wife, Flora Hengelsberg, eastwardly on highway 66 near Gray's Summitt, Mo. Defendant was driving his automobile westwardly along the same highway. The two automobiles collided while rounding a curve, and plaintiff's wife met with injuries. The scene of the collision was three miles east of Gray's Summitt, where the concrete slab of the highway is 18 feet wide with a black line marking the center of the roadway.
Plaintiff and his wife 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 being driven at the rate of 25 or 30 miles per hour; that the road is curved at the point of the accident, the curve starting 500 feet west of the scene of the accident and continuing 20 to 25 feet east of the scene of the accident; that the curve was to their right; that the road was banked on the north side; that, at the time of the collision, their automobile was on the right or south side of the road, the left side being 2½ or 3 feet south of the center of the roadway at the time of the collision; that the left front fender or left front wheel of defendant's automobile hit the left front wheel and left front fender of plaintiff's automobile; that the two automobiles side-swiped; that plaintiff's automobile continued for about 50 feet after the collision, and came to rest on the north side of the road headed in towards a barbed wire fence; that the impact rendered the steering wheel useless, and that the left front tire was blown out; that defendant's automobile turned over on its right side — headed in a northerly direction.
Mrs. Flora Hengelsberg testified that, at the time of the collision, their automobile was within a foot of the edge of the concrete road; that they were going at the rate of 25 or 30 miles an hour as they approached the point of collision.
Other witnesses for plaintiff testified to the presence of the tire marks as being found on the south side of the center of the road. The testimony of the defendant and of other occupants of his automobile was in sharp conflict with the testimony of plaintiff. Each of these witnesses testified that the defendant was driving his automobile westwardly on the highway between 25 and 30 miles an hour, and that at the time of the impact the wheels of the defendant's automobile were over to the north of the center line of the roadway.
The question as to just where the respective automobiles were with reference to the center of the highway when the collision occurred was a vital issue in the case. The testimony of the parties was in direct conflict thereon.
Defendant complains of the following part of instruction No. 1: "and if you further find that the defendant failed and omitted upon meeting the automobile being operated by plaintiff to drive his automobile to the right (North) of the center of said highway so as to pass the automobile being operated by the plaintiff without interference. * * *"
It is contended this instruction is...
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Williams v. Independence Waterworks Co.
... ... 387, ... 32 S.W.2d 288, 291-292; Wild v. Pitcairn, 347 Mo ... 915, 149 S.W.2d 800, 804, 805; Hengelsberg v. Cushing ... (Mo. App.), 61 S.W.2d 203, 204; Keehn v. D. R. F ... Realty & Inv. Co., 328 Mo. 1031, 43 S.W.2d 416, 417; ... Moore v. Great ... ...
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...even though the parties are in such circumstances that the wife is not accustomed or desired to do physical labor.' Hengelsberg v. Cushing, Mo.App., 61 S.W.2d 203, 204; Baldwin v. Kansas City Rys. Co., Mo.App., 231 S.W. 280, 282; Womach v. City of St. Joseph, supra, 100 S.W. 443, 448. Furth......