Jageles v. Berberich

• Decision Date: 08 October 1929
• Docket Number: No. 20790.,20790.
• Parties: JAGELES v. BERBERICH.
• Court: Missouri Court of Appeals

20 S.W.2d 577

JAGELES v. BERBERICH.

No. 20790.

St. Louis Court of Appeals. Missouri.

October 8, 1929.

Rehearing Denied October 23, 1929.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by Gus Jageles against William Berberich, doing business as Berberich's Delivery Company. Judgment for defendant, and plaintiff appeals. Reversed, and remanded.

Goodman & Stephenson, of St. Louis, for appellant.

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent.

BECKER, J.

This is an action to recover damages for injuries alleged to have been sustained by plaintiff as the result of a collision between an automobile truck of the defendant and an automobile driven by plaintiff. The case was tried to a jury, resulting in a verdict for the defendant. From the resulting judgment, plaintiff brings this appeal.

The assignments of error urged here by appellant, plaintiff below, have reference solely to instructions given at the request of the defendant. The respondent, defendant below, however, contends that plaintiff submitted his case to the jury solely upon the humanitarian doctrine, and that the evidence was insufficient to authorize the submission of his case upon the humanitarian doctrine, and that the defendant's instruction in the nature of a demurrer at the close of the whole case should have been given, and that, therefore, under such circumstances, error, if any, in defendant's instructions is immaterial.

In this situation we have read the record carefully to determine whether or not plaintiff made out a case for the jury under the humanitarian doctrine, and have come to the conclusion that defendant's demurrer, offered at the close of the case, was well ruled. In considering the record before us we have in mind that where, after a demurrer to the evidence offered at the close of the plaintiff's testimony in chief has been overruled, the defendant puts in his own case, the final demurrer searches all the testimony, to see if plaintiff's case was not aided by defendant's proof. Stauffer v. Met. St. R. R. Co., 243 Mo. 305, 147 S. W. 1032; Lorton v. Mo. Pac. R. R. Co., 306 Mo. 125, loc. cit. 137, 267 S. W. 385. In other words, plaintiff must be given the benefit of all testimony that has been adduced on his behalf and any favorable testimony given by the defendant's witnesses, in addition to which plaintiff must be allowed the benefit of every reasonable inference deducible therefrom, and the evidence on the part of the defendant which is contradicted must be considered as excluded. Anderson v. Davis, 314 Mo. 515, loc. cit. 551, 284 S. W. 439; Link v. Atlantic Coast Line R. R. Co. (Mo. App.) 233 S. W. 834; Lindsay v. Shaner, 291 Mo. 297, 236 S. W. 319; Hague v. Threadgill (Mo. App.) 236 S. W. 895; Van Hemelen v. Eads (Mo. App.) 244 S. W. 942; Braun v. Wells (Mo. App.) 267 S. W. 98.

Reading the present record in light of the rule above stated, we find that plaintiff's own testimony was to the effect that on June 24, 1927, shortly after 5 o'clock in the afternoon, he was driving his Ford sedan (Model T) in the city of St. Louis, south on Seventeenth street, with the right-hand side of his car some 5 or 6 feet from the west curb thereof; that he stopped his car at the north curb line at the intersection of Seventeenth and Locust streets, remaining stopped for one-half to one minute; that there was heavy traffic, in two parallel lines of automobiles, west-bound on Locust street; that the two lines of automobiles extended from Seventeenth street west to the intersection of Eighteenth and Locust streets; that these cars to the west were stopped because of a stop signal at Eighteenth street; that because of these automobiles to the west he was unable, at the point where he stopped at the intersection of Seventeenth and Locust streets, to see whether any cars were approaching from the east on Locust street; that at this juncture a space or gap was left open at Seventeenth street, between the two rows of cars that were headed west on Locust street, and that the gap was wide enough to permit a car to go north and one to go south on Seventeenth street. Receiving a signal from the drivers of the two cars who headed the parallel lines of traffic in Locust street headed west, and standing immediately east of the intersection of Seventeenth street, plaintiff started to cross Seventeenth street; that as his automobile moved south on Seventeenth street, between these two rows of standing automobiles, he could not see to the west on Locust street until he "got to the outside end of the south car there, that second row of cars. At that time I had a view to the west. All these cars were standing. Then for the first time I could see to the west. My view was not obstructed then. By looking I could see west — I guess every bit of 100 feet. I cannot say whether it was 100 or 150 feet, but I did look at least 100 feet. I saw nothing coming at all. Then my car was standing in this double row of traffic. At the time I was looking to the west, at least 100 feet, there was no car coming. I was still in low. * * * The front part of my machine was near the center of Locust street when I looked west. I did not see any east-bound traffic. I could see west about 100 feet, one-half a block. I then kept on going south. I was then hit by a machine, by a truck coming up the hill from the west. * * * My car, with reference to the center line of Locust street, when I was struck, I was just a little beyond the center line. The rear of my car, with reference to the center line of Locust street was shortly north of the center line. I did not notice any other vehicles in the intersection other than my automobile and the truck which struck me. * * * There was nothing to prevent an automobile from turning into Seventeenth street off of Locust street. I did not at any time hear any horn or gong sounded by the driver of this truck which struck me. I first saw the truck which struck me when he was right on top of me, just about the time of the collision. I did not have an opportunity to gauge the speed at which he was driving."

The theory of the defendant's case is clearly put by the defendant's witness, Dillon, who was the chauffeur for defendant in charge of the truck that collided with the automobile driven by plaintiff. He testified that he was driving east on Locust street, and had to bring his car to a stop for the stop signal at Eighteenth street and Locust street; that when the signal changed to "Go" he immediately started east again on Locust street toward Seventeenth street, and that as he "got to the intersection of...