Jacobson v. Beffa

• Decision Date: 06 April 1926
• Docket Number: No. 19276.,19276.
• Parties: JACOBSON v. BEFFA.
• Court: Missouri Court of Appeals

282 S.W. 161

JACOBSON v. BEFFA.

No. 19276.

St. Louis Court of Appeals. Missouri.

April 6, 1926.

Rehearing Denied April 27, 1926.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Nettie Jacobson, an infant, by Henry Jacobson, her next friend, against Anton Beffa. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Claude D. Hall, of St. Louis (C. P. Berry, of St. Louis, of counsel), for appellant.

Foristel, Mudd, Hezel & Habenicht, and James T. Blair, all of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries sustained by Nettie Jacobson at the intersection of Seventeenth and Biddle streets in the city of St. Louis. Plaintiff recovered judgment, and defendant appeals. There is no question raised here as to the pleadings, and it becomes unnecessary to refer thereto.

The objections urged on appeal are that the court should have given a peremptory instruction in the nature of a demurrer to the evidence requested by defendant, because the plaintiff failed to show that the defendant owned the automobile, had control over it or the driver, or that the automobile was being driven for defendant on his business. It is also insisted that there was no evidence to show that the rate of speed at which the automobile was traveling was the proximate cause of the plaintiff's injuries.

The evidence as offered on the part of the plaintiff discloses that she was 12 years of age, and that on the afternoon of February 25, 1922, her aunt visited at her home, situated a couple of blocks away from the place where the accident occurred. When her aunt left for the purpose of going to her home the plaintiff accompanied her to the street car. There is one street car track on Biddle street, and cars run west only at this point. The plaintiff proceeded to a point on Biddle street where the street car stops to take on passengers. They waited on the sidewalk for the car to arrive, and when it did arrive they both stepped out to the track, and plaintiff's aunt, Miss Greenberg, boarded the car. As the car started away westward, Miss Greenberg was on the rear platform, looking back at her niece, the plaintiff, who was standing in the street near the car track and waving good-bye to her aunt. Plaintiff stood with her back to the east, near the north rail of the track, looking toward the street car as it left westward. The automobile in which defendant was riding came from the east, and was running astride the north rail of the car track, and was moving at a rate of something like 20 miles an hour. From plaintiff's evidence it appears there were no other vehicles between the plaintiff and the automobile, or in the street near the place of the injury. The automobile continued in its course without swerving until it struck plaintiff. There is evidence that the automobile, traveling at the rate of 20 miles an hour/could have been stopped within 13 or 14 feet. According to plaintiff's testimony, there was no horn sounded or any signal given of the approach of the automobile. When Miss Greenberg saw the automobile strike the plaintiff, she got off the street car at the next block and went back to where plaintiff was. At that time defendant, had alighted from the automobile, and was assisting plaintiff, and insisted on taking her to his doctor. Miss Greenberg accompanied them, and they were taken, at defendant's suggestion, to the office of Dr. Mayes. Defendant told Dr. Mayes to do all he could for the little girl, and spare no expense. He told the doctor that his car hit the girl, and to do all he could for her. After being treated at the doctor's office, plaintiff was put in the same automobile which struck her, and she was taken to her home, and defendant helped to take her into her home. Defendant gave Miss Greenberg his card, and told her he was Anton Beffa, and owned the wrecking supply company of that name, and to tell the plaintiff's father that if he wanted to see him to come to his office. On the face of this card was defendant's name, and the words: "General Manager, Anton Beffa & Sons Wrecking Supply Company, S. B. Cor. Jefferson Ave. & O'Fallon St., St. Louis, Mo." The evidence offered on the part of the plaintiff showed that this Ford automobile in which defendant was riding at the time plaintiff was injured had a sign attached to the side of the car on which were the words : "Anton Beffa & Sons Wrecking & Supply Company, Jefferson & O'Fallon Sts." The sign was not painted on the car, but was attached to a piece of oilcloth, or something of that nature. There was also evidence that at the time of the injury there were some tools on the rear seat of the car, and there were also two sacks in the automobile with some iron and lead pipe sticking out.

The evidence offered on the part of the defendant was to the effect that the automobile in question was owned by Harry Beffa, a son of defendant who lived above the offices of defendant; that the license was issued in the name of Harry Beffa; and that the automobile was kept in a place adjacent to the building in which Harry Beffa lived; that Harry Beffa owned it, and had bought it from his brother; that the defendant never Wed it, but that on the evening in question Harry Beffa's stepson, McAdams, had procured the automobile, and was driving about town, and happened to pass the defendant and Tonna Beffa about three or four blocks east of where the accident occurred; told them he was going in that direction, and' asked them to ride with him; that the tools in the automobile were automobile tools; and that it was McAdams, the driver, who told the doctor to look after plaintiff, and that defendant had no conversation with the doctor.

McAdams testified that, when the street car stopped near Seventeenth and Biddle, there was a truck back of it, which also stopped; that the plaintiff was standing on the...