Ikemeyer v. Stanford

• Decision Date: 07 February 1928
• Docket Number: No. 20086.,20086.
• Citation: 2 S.W.2d 106
• Parties: IKEMEYER v. STANFORD.
• Court: Missouri Court of Appeals

2 S.W.2d 106

IKEMEYER v. STANFORD.

No. 20086.

St. Louis Court of Appeals. Missouri.

February 7, 1928.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by Thomas Ikemeyer, an infant, by Rudolph F. Ikemeyer, his next friend, against F. E. Stanford. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry, of St. Louis, for appellant.

Mark D. Eagleton, Everett J. Hullverson, and Leo Lyng, all of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. On October 1, 1925, about 10 o'clock in the forenoon, plaintiff, while walking west across Grand avenue at or near its intersection with Cass avenue in the city of St. Louis, was struck by an automobile owned and operated by defendant and thus sustained the injuries for which he sues. The trial, with a jury, resulted in a verdict in favor of plaintiff for $3,000. The court compelled a remittitur of $1,200, and judgment was given for $1,800. Defendant appeals.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence, on the ground that the evidence conclusively shows that the plaintiff was guilty of contributory negligence, and there was no evidence justifying the application of the humanitarian rule.

Plaintiff was 16 years old at the time of his injury. He was working for a department store, delivering bundles from a delivery truck to the customers of the store. He testified that at the time he was struck he was carrying a bundle of linoleum on his shoulder, and was delivering it to 1721 North Grand avenue; that he saw defendant's automobile approaching about 175 feet north of him when he was on the north-bound street car track; that the automobile was approaching at a speed of 15 to 20 miles per hour; that he continued to walk across the street, and when he got on the west side of the south-bound street car track, at or near the west rail, he again saw the approaching automobile about 60 feet from him; that he went on across the street to deliver the bundle, looking toward the place where the bundle was to be delivered; that there was about 10 feet between the track that he was on when he last saw the automobile and the west curb; that the next thing he knew he was struck by the automobile, right by the front fender on the right side; that he was about 3 or 4 feet from the west curb when he was struck; that he heard no warning at any time; that the automobile was running about the same rate of speed all the time, and was in about the same path or the same part of the street; that it did not swerve to one side or the other; that there were no automobiles parked on the west side of Grand avenue, and there were no objects of any kind between him and the approaching automobile; that it was a bright, clear day; that at the time he looked and saw the automobile something like 60 feet north of him, ...